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THE 



LIFE AND TIMES 



JOHN JAY 



SECRETARY OF FOREIGN AFFAIRS UNDER THE 
CONFEDERATION 

-^ AND 

^ First Chief J list ice of tJje United States 



A SKETCH OF PUBLIC EVENTS FROM THE OPENING OF 

THE REVOLUTION TO THE ELECTION 

OF JEFFERSON 



WILLIAM WHITELOCK 



NEW YORK 

DODD, MEAD, AND COMPANY 

1887 







Copyright, 1887, 
By WILLIAM WHITELOCK. 



3j Traoialei 



RAND AVERY COMPANY, 

ELECTROTV-PERS AND PRINTERS, 

BOSTON. 



THIS SKETCH 

OF ONE OF THE MOST EFFICIENT PROMOTERS AND EARLIEST 
EXPOUNDERS OF THE CONSTITUTION, 

Is aff£ctionat£l2 SctiicaUti 
To M. S. H., 

ON THE ONE HUNDREDTH ANNIVERSARY OF THE 
PROMULGATION OF T#AT INSTRUMENT. 

Baltimore, Sept. 17, 1887. 



CONTENTS. 



CHAPTER 



PAGE 



I. Preliminary i 

it Youth and Manhood 6 

III. Colonial Taxation i8 

IV. The Destruction of Tea 33 

V. Preparing for a Congress 4-6 

VI. The Congress of 1774 55 

VII. The Congress of 1775 67 

yill. Independence S2 

IX. New-York Convention 99 

X. President of Congress 118 

XI. Mission to Spain i34 

XII. The Treaty of Peace, 1783 152 

XIII. French Intrigues 176 

XIV. Secretary of Foreign Affairs .... 194 
XV. National Parties 216 

XVI. Chief Justice 226 

XVII. Candidate for Governor 241 

XVIII. Relations with England 248 

XIX. The Treaty with England 264 



vi CONTENTS. 



CHAPTER FAGB 

XX. The Treaty in the United States . . . 277 

; XXI. Governor of New York 293 

XXII. The Election of Jefferson 306 

XXIII. In Retirement at Bedford 325 

XXIV. Conclusion 333 

APPENDICES. • 

A. Address to the People of Great Britain . . 341 

B. The Constitutional Right to sue a State of 

THE Union 354 



THE LIFE AND TIMES OF JOHN JAY. 



I. 

PRELIMINARY. 



IF the value of a man's services to his country is to 
be measured by the variety and importance of the 
public positions he has filled, no statesman of Amer- 
ica is more entitled to its gratitude than John Jay. 

Of the many eminent names which adorn its ear- 
lier annals, it would be difficult to point to one pos- 
sessing stronger claims to respect and admiration for 
the entire harmony of his intellectual and moral en- 
dowments, the high purposes to which these were 
applied, his freedom from passion, and his discrimi- 
nating and unclouded judgment. 

Though not cast in the heroic mould, nor making 
a luminous mark upon the page of history, yet, as 
Ambassador, Secretary of Foreign Affairs, Chief 
Justice, Governor ; as aiding in the establishment of 
independence and the adoption of the Constitution, 
— he exercised great and enduring influence and 



2 THE LIFE AND TIMES OF JOHN JAY. 

proved himself always equal to the duties that he 
assumed. To their performance, he brought those 
virtues which dignify and adorn private station, but 
are too often strangers to official rank. 

His purity of character, ability, inflexible resolu- 
tion, and devotion to principle, won him the life-long 
friendship of Washington, and the many distin- 
guished men with whom he was thrown ; and it is 
therefore well to weigh his services,' and endeavor to 
fix his place among those who gave impulse and per- 
manent direction to the nation's political development. 

The prejudice which obscured the fame of the 
leading Federalists has now in a measure died away, 
and the time arrived when an unbiassed estimate 
may be formed upon the conduct of those who for 
so long a period were denied a hearing at the bar of 
public opinion. Jay was particularly unfortunate. 
He never appealed from the slanderous imputations 
which at one time assailed his reputation ; and as he 
withdrew into private life, with the overthrow of the 
Federal regime a few years later, it has been tacitly 
assumed that these aspersions, disseminated for party 
ends, had their foundation in truth. Hence a shadow 
has been permitted to rest upon the name of one 
"whose worth is much greater than his fame." 

The extensive publication of the correspondence 
of prominent Federalists made during the past half- 
century, has cast a flood of light upon their charac- 



PRELIMINARY. 



ters, showing them to have been earnest patriots, 
inspired by no selfish motives, but seeking to promote 
the welfare and happiness of the country, by meas- 
ures which met the approval of their best reason and 
conscience. " The Life and Correspondence " of 
Jay, by his son, was one of the earliest of these pro- 
ductions. It has now passed out of print, and is 
known but to few of this generation. As one of 
the leaders of a great national party, John Jay must 
always be an imposing figure in the political history 
of America. The story of his career, if again told, 
may therefore prove of interest, and even possess 
the attraction of novelty, to readers of the present 
day, supplying the young with the needed lesson, 
that " Corruption wins not more than honesty," and 
that official station is not necessarily associated with 
self-seeking, and should not be pursued for its emolu- 
ments. 

Jay's life may be not unequally divided into three I 
distinct periods, strikingly coincident with his bach- 
elor, wedded, and widowed condition, — the first, to 
the date of his engaging in public affairs ; the second, 
from that time to the inauguration of Jefferson ; and 
the last, embracing the twenty-eight years of his 
retirement. It is with the second that we have 
chiefly to deal. He entered the service of his 
country with the opening scenes of the Revolution, 
and continued in it for twenty-five years. In all that 



4 THE LIFE AND TIMES OF JOHN JAY. 

time he enjoyed the confidence, and participated in 
the counsels, of the men who shaped its destinies, 
displaying under all circumstances the qualities of a 
Christian statesman, loyal to the highest principles 
of rectitude. 

It may be thought that the following work is of 
too historical a nature for a biography : but for a full 
understanding of the causes which led to the inde- 
pendence of the Colonies, and Jay's consequent parti- 
cipation in national affairs, it has proved necessary 
to go back and trace events prior to the Revolution ; 
from that date to his retirement, his life was so 
blended with the country's history as to be incapable 
of separation : while the narrative may lose none of 
its interest on this account, it is thereby deprived 
of much of its epic character. 

His memoirs can be written only from an objective 
stand-point. They would fail who should undertake 
to give to the'world a view of the inner emotional 
life of such men as John Jay and George Washing- 
ton. Hence, the elaborate biographies of the latter, 
written by Marshall and Irving, are mainly a re- 
hearsal of public events. 

Mr. Jay, as a distinguished Federalist, was the 
object of the most unsparing attacks by the party 
associates of Jefferson ; and a review of his life is the 
best refutation of their charges. As it is believed 
that many of these emanated from the Republican 



PRELIMINARY. 



leader, it has been thought necessary that his own 
motives and conduct at the time should be displayed. 
This has been done, we would fain hope, without 
prejudice, and with a proper regard to justice and 
historical truth. 

In preparing the ensuing sketch, we have freely 
availed ourselves of the labor of those who have 
investigated the stirring period that it covers, and 
have adopted their opinions when they have met 
the approval of our own judgment. 



THE LIFE AND TIMES OF JOHN J A Y. 



II. 

YOUTH AND MANHOOD. 

JOHN JAY, the eighth child of. Peter Jay and 
Mary Van Cortlandt, was born in the city of New 
York on the 12th of December, 1745. Religious 
intolerance had originally driven one branch of his 
family from Bohemia into Holland, while another 
had fled from the persecutions following the revoca- 
tion of the Edict of Nantes ; and he thus inherited 
the stern morality of the Huguenots with that love 
of freedom in all its forms which characterized the 
sturdy Dutchman. As far as the line of his ancestors 
can be traced, it is uniformly marked by intelligence, 
enterprise, and thrift, combined with fervent piety 
and patient endurance. The knowledge of this rich 
inheritance unquestionably did much to inspire their 
descendant to emulate them. 

" How sharp the spur of worthy ancestry 
When kindred virtues fan the generous mind ! " 

Jay's father was a man of vigorous intellect, sound 
judgment, and pure morals ; and these admirable 
qualities were durably impressed upon the ductile 



YOUTH AND MANHOOD. 



mind of his son. Embarking early in mercantile 
pursuits, and having by middle age acquired what 
was then deemed a competency, he retired to Rye, 
Westchester County, near New York, while John 
was yet an infant. Two of his children had been 
deprived of sight by improper treatment during an 
attack of small-pox, and this misfortune was probably 
one cause of the family's removal to the quiet of a 
rural village. The mother, like other matrons of the 
time, was devoted to her domestic duties ; but, unlike 
most of those matrons, she possessed a cultivated 
mind, and hence was able herself to superintend the 
early education of each of her numerous children. 
The eldest son was graduated as a physician, and, 
proceeding to Europe with the view of perfecting 
himself in his profession, was there employed on 
behalf of King's College, and subsequently received 
the honor of knighthood from his sovereign. Prior 
to the breaking out of hostilities with the mother 
country, Sir James Jay returned home, and, with 
other members of the family, entered the service 
of the Colonies. Those incapacitated by blindness 
were protected and supported by John, when at times 
his own circumstances were straitened by the war ; 
and a considerable degree of self-denial was required 
for the performance of this duty. His brother Peter 
repaid the sacrifice with the deepest devotion, and, 
notwithstanding his affliction, acquired a liberal edu- 



8 THE LIFE AND TIMES OF JOHN JAY. 

cation, and proved himself an influential and useful 
citizen. Of a gentle and retiring nature, John ap- 
pears to have been much of a favorite with his 
mother, who instructed him in the rudiments of the 
English language, as well as in the Latin grammar. 
His progress in these studies must have been satis- 
factory to both parents, as, before he reached his 
eighth year, the father could write to a relative, 
"John takes to learning exceeding well;" and again, 
a little later, " My Johnny gives me a pleasing pros- 
pect, is endowed with a very good capacity, and is 
fond of his books." The love, respect, and consid- 
eration that he always bestowed upon his parents 
testify that their affectionate care during these years 
was not lost upon him. 

After spending some time, first at an ordinary 
grammar school, and afterwards with a private tutor, 
he became, at the age of fourteen, a freshman of 
King's College, then under the charge of Dr. Samuel 
Johnson, a ripe scholar and cultured gentleman. 
The institution was in its infancy ; and its curricu- 
lum was, therefore, not very extensive. It is fair, 
however, to suppose that the students, in their regu- 
lar course, were thoroughly grounded in every branch 
of learning pursued within its walls. They were, as 
yet, few in number ; but among them was Robert R, 
Livingston, Jay's junior by a year, who was soon to 
be joined by Gouverneur Morris. 



YOUTH AND MANHOOD. 9 

Between Jay and these two a close friendship was 
estabUshed. We may fancy them roaming amid the 
forests then growing where the City Hall now stands, 
discussing the terms of peace just proclaimed, the 
bravery displayed by a young Virginia colonel at 
Braddock's defeat, or, perhaps, revelling in the happy 
prospect which seemed to be opening for the English 
race under the youthful king who "gloried in the 
name of Briton." The great future of New-York 
City was as deeply hidden as was the eminent des- 
tiny of these young men. Emerson says, " If the 
companions of our childhood should turn out to be 
heroes, it would not surprise us." A boy, like the 
poet, lives in his day-dream ; but the most vivid 
imagination could hardly foretell, that, in early man- 
hood, these friends would assist in wresting their 
country from the rule of its sovereign, and that, later 
in life, they would all occupy high positions in its 
service abroad, — that one of them would be called 
upon to sign a treaty establishing its independence, 
and another to negotiate one adding vast provinces 
to its original domain. 

A country grammar school had not grounded Jay 
very thoroughly, and he now applied himself with 
resolution and perseverance to supply the deficiency. 
Truly, the child is father to the man ; and all that 
education can accomplish is to develop the germs 
already implanted, leaving auspicious circumstances 



10 THE LIFE AND TIMES OF JOHN JAY. 

to unfold the character. It is always interesting to 
turn back the page, and revert to the youth of those 
who have become distinguished, and compare the 
promise of that spring-time with the autumn of its 
fulfilment. We find little recorded of Jay's boyhood ; 
but the details of his college life, though meagre, are 
honorable, and marked by the same pure morals and 
high principles which then winning him the friendship 
of Dr. Johnson, afterwards characterized his career in 
life. A few weeks before his expected graduation, 
an incident occurred which strikingly illustrates his 
truthfulness and firmness. His associates had been 
catechized, to learn which of them was guilty of a 
certain offence. Jay was asked if he knew the 
transgressor. He replied, "I do." — "Who was 
it.''" — "I do not choose to tell." This refusal, 
though claiming the respect of the faculty, caused 
them to suspend him for a year. A later occurrence, 
trifling in itself, is recorded as indicating the affec- 
tion that existed between the embryo lawyer and his 
family. When entering on his clerkship away from 
home, he sought his father's permission to keep a 
horse, that he might be enabled to spend a day every 
fortnight with his parents. The request was granted. 
The population of the city of New York did not, 
at that time, exceed twenty thousand. Its inhabit- 
ants still retained many characteristics of the first 
settlers, and were exclusive in their social life ; yet 



YOUTH AND MANHOOD. II 

Jay, a descendant of Mary Van Cortlandt, could have 
been no unwelcome visitor at the Knickerbocker 
firesides. The opulent and cultivated family of 
Judge Livingston, dwelling at Clermont during the 
summer, spent their winters in the city, dispensing 
at both places a generous hospitality. His intimacy 
with the eldest son, — the future chancellor, — 
doubtless caused him to be a frequent guest at their 
table, and his character and manner to be greatly 
moulded by this familiar intercourse. The judge 
was genial and affectionate, a determined opponent 
of British aggression, and soon after became a mem- 
bel" of the Stamp-Act Congress. He was deeply 
interested in public affairs, and, in the freedom of 
private life, would be apt to discuss the proceedings 
of Parliament, and point out to the youthful visitor 
the danger to be apprehended from submission by 
the Colonies to its assumed jurisdiction. Young Jay, 
too, must often have played with the attractive and 
sweet-tempered child, — the Benjamin of the house- 
hold, destined to develop into the future philan- 
thropist and statesman, his distinguished adversary, 
— Edward Livingston. 

Johnson, retiring to England, was succeeded in the 
presidency of King's College by Myles Cooper, cele- 
brated alike for his attainments in theology and 
literature, and for his high Tory notions of royal pre- 
rogative. Jay was graduated a few months after 



12 THE LIFE AND TIMES OF JOHN JAY. 

that gentleman's inauguration ; but political differ- 
ences never impaired their friendship, and he was in 
after-life always accustomed to speak of the doctor in 
terms of great respect. Hamilton entered the college 
after Jay had left, and, at seventeen years of age, had 
the rare honor of breaking a lance through the press 
with his preceptor, and of subsequently protecting 
him against an exasperated mob to whom he had 
rendered himself obnoxious. 

Having passed with credit through his collegiate 
course. Jay selected the law as a profession, and soon 
entered upon its study under the guidance of Ben- 
jamin Kissam, an eminent practitioner. It was then 
a rugged and uninviting pursuit, requiring the ut- 
most perseverance to become its master. Black- 
stone, about that time, was delivering his celebrated 
lectures in London ; but the American student had 
to delve among the black-letter of the early fathers 
in order to acquire a knowledge of the principles of 
legal science. Four years of close and diligent ap- 
plication intervened before Jay was admitted to the 
bar. The amiable Lindley Murray, well known for 
his grammatical and other educational works, was in 
the same office, and in his autobiography thus refers 
to his associate : " His talents and virtue gave at 
that period pleasing indications of future eminence. 
He was remarkable for strong reasoning i^owers, 
comprehensive views, indefatigable application, and 



YOUTH AND MANHOOD. 13 

uncommon firmness of mind. To tliese were added 
a just taste in literature, and ample stores of learn- 
ing and knowledge." No man was more successful 
than John Jay in winning the kindly feeling and 
respect of those with whom he was thrown ; and 
though he differed in religious and political princi- 
ples from the plain Friend who thus wrote, the affec- 
tion of Murray continued unabated to the close. 
Ere Jay had entered upon the practice of the law, 
the relations between him and Kissam had become 
most friendly and confidential, and so continued 
until the decease of the latter. Jay said, "He was 
one of the best men I ever knew, and one of the best 
friends I ever had." It is pleasant to know, too, that 
during the political troubles which arose, they stood 
side by side, aiding and upholding to the utmost the 
constitutional rights and honor of the country. 

Upon being called to the bar of his native city. 
Jay formed a professional connection with his friend 
Livingston, which, however, was soon dissolved, they 
probably thinking that each would succeed better in 
procuring clients if alone. Nor was Jay disappointed. 
He was not condemned, like many, to idly pace the 
courts from year to year. His ability, probity, and 
industry were recognized by his fellow-citizens, and 
early obtained for him a practice lucrative for that 
time. His close application to business soon impaired 
his health, which was only restored by active and 



14 THE LIFE AND TIMES OF JOHN JAY. 

constant exercise. A dispute having arisen between 
New York and New Jersey about their respective 
boundaries, the British authorities appointed a com- 
mission for its adjustment, and of this he became 
secretary. His duties as such exacted a large por- 
tion of time, and involved considerable labor; but 
they early terminated, after having brought him 
prominently before the officials of the province, 
thereby increasing his reputation. 

Soon after his admission to the bar, its leading 
members founded a weekly club for the purpose of 
"social conversation and mutual improvement." 
Among them were Smith the historian. Jay, Benson, 
the two Livingstons, Morris, and Duane. The intro- 
duction of "party politics of the Province" was pro- 
hibited ; yet, with the patriotic feelings entertained 
by several of them, the recent measures of the minis- 
try were undoubtedly well ventilated. With the 
humorous and genial William Livingston and Kissam 
among the number, at least one purpose of the club's 
formation was carried out. It is known that its dis- 
cussions materially influenced the judgment of the 
Superior Court, which referred to its decision a point 
relating to legal methods. 

Jay's membership probably led to his introduction 
into the home of William Livingston, and a subse- 
quent meeting with that gentleman's daughter, Sarah 
Van Burgh Livingston, then entering upon her six- 



YOUTH AND MANHOOD. 15 

teenth year. A more intimate acquaintance proved 
that tlie qualities of her mind equalled the attraction 
of her person, and the heart of the young lawyer was 
made captive. The marriage between them did not, 
however, take place until the spring of 1774, after 
her parents had removed to the town of Elizabeth, 
N.J. The chronicles of the day report that Jay " was , 
wedded at Elizabeth to the beautiful Sarah Living- 
ston, and a large proportion of the notable people of 
New York were present." That the union between 
them was one of affection, and not a manage de con- 
veiiance on either side, is testified by thirty years 
of unclouded domestic happiness ; and the letters of 
his parents indicate that the wife soon won and re- 
tained the love of her husband's family. Her pri- 
vate life was thenceforth shaped and controlled by 
public events. Jay was now, as the master of a 
household, settled in his domestic relations, and 
might properly look forward to a long and success- 
ful professional career. He had reached the front 
rank at the bar of the city, and had already estab- 
lished a reputation for legal attainments and forensic 
ability. Colden, the lieutenant-governor, in his de- 
spatches spoke of him as an eminent lawyer ; and 
John Adams wrote that he was a hard student 
and good speaker. As a man, he possessed the con- 
fidence of his fellow-citizens, and was not more 
respected for his talents than for his moral worth. 



1 6 THE LIFE AND TIMES OF JOHN JAY. 

His marriage gave him a firmer hold upon the com- 
munity, and a deeper interest in its welfare ; while 
his father-in-law having lately withdrawn from the 
bar, he might naturally look to his aid in gathering 
the residuum of his large and successful practice. 

But a change soon came. The country had more 
important work for him than protecting the interests 
of individuals in petty provincial courts. Though 
his convictions were clear as to the justice of the 
colonial side of the controversy with England, we 
possess no evidence that he had, with his pen, par- 
ticipated in it. The discussion had taken place 
mainly between the period of his admission to the 
bar and the date of his marriage, when he was closely 
occupied in seeking clients, and in winning the affec- 
tions of Miss Livingston. While the mother country 
had steadily adhered to her purpose of colonial taxa- 
tion, she wavered, at times, as to the mode of accom- 
plishing it ; and he possibly supposed that the trouble 
would be settled by the withdrawal of her preten- 
sions. Even after the tea had been destroyed at 
Boston, he might well have thought that she would 
hesitate before undertaking to punish an entire com- 
munity for what might be deemed the sudden out- 
break of an excited populace. 

If such was his expectation, the illusion was dis- 
pelled ere the last quarter of his honeymoon had 
passed. The enforcement of the Port Bill convinced 



YOUTH AND MANHOOD. 17 

him that the dispute between Parliament and the 
Colonies had reached a crisis which demanded his 
interposition. Without hesitation, he entered upon 
the broad field of political life opening before him. 
Such a step implied great labor and self-sacrifice, as 
well as the abandonment of his profession ; but it 
was the path of duty, and led onward to high honor. 
Six years' faithful practice of his profession had emi- 
nently qualified him for public service ; and, once 
actively enlisted in the cause of his country, he 
never rested on his arms until her position had been 
triumphantly vindicated, and her independence ac- 
knowledo-ed. 



1 8 THE LIFE AND TIMES OF JOHN JAY. 



III. 

COLONIAL TAXATION. 

THE relation between England and her American 
possessions differed essentially from that which 
France and Spain had established with theirs. In- 
stead of being royal provinces, planted by a king 
who exercised supreme jurisdiction over them, and 
derived from them a direct revenue, they were mostly 
held under grants of varied powers and extent, made 
to individuals or companies, a common sovereign 
being the only tie binding the colonist to his coun- 
trymen at home. The greater number of the grants 
contained an express declaration that emigrants and 
their children should be deemed natural-born sub- 
jects, and enjoy the immunities and privileges of 
such ; and that the laws of England should, so far 
as applicable, be in force, and all made in America 
conform thereto. The king had conceded franchises, 
and assumed protection, and in return exacted alle- 
giance from the settlers. Each colony was held by 
a separate charter, or grant, and was entirely inde- 
pendent of its neighbors ; but all were debarred from 



COLONIAL TAXATION. 1 9 

commercial intercourse with foreign nations ; and 
their inhabitants, as freemen, inheriting the common 
law, could not be taxed, except by their own repre- 
sentatives. 

Fortunately, English statesmen of all parties af- 
fected to believe that they had been planted and 
were held simply for the development of the com- 
mercial and manufacturing industry of the mother 
country. This was the central idea of all her legis- 
lation. The Americans yearned to be considered in 
the light of her progeny, but she insisted upon treat- 
ing them as inferiors and dependents. With the 
purpose of securing a portion of the Dutch carrying- 
trade for its own people, the Commonwealth had, 
in the year 1660, passed the celebrated navigation 
law, which, after the Restoration, was re-enacted, and 
its scope enlarged. It had originally permitted some 
traffic between the Colonies. In its new form, it 
prohibited their importing any merchandise, except 
when shipped direct from England. Not satisfied, 
however, with this, the royal Parliament demanded, 
under William, that all exports should be made to 
that country alone ; thus in effect inhibiting trade, 
except when a profit was realized by the English 
merchant and ship-owner. In addition to furnishing 
the colonist with his supplies of every kind, England 
aimed at a complete engrossment of his exports. 
Thus, Massachusetts and Virginia were unable to 



20 THE LIFE AND TIMES OF JOHN JAY. 

exchange their fish and tobacco, except through her 
agency. In a word, her ports were made the sole 
mart for American products, and her manufactures 
the only ones to be used. Burke testified truly that 
it was a grasping monopoly. 

It is not, therefore, surprising that her commerce 
and naval power grew and expanded, nor that she 
was able to sustain the heavy drain caused by her 
numerous maritime and continental wars. Secure 
from attack upon her own soil, with her industry 
undisturbed, and her productive Colonies contribut- 
ing their share of wealth, she prospered in the midst 
of hostilities which would have exhausted the re- 
sources of any other European nation of the time. 

A system thus violating justice and the laws of 
trade was incapable of rigid enforcement, and hence 
illicit traffic was, to a large extent, pursued ; but the 
tenor of the provisions indicates clearly the senti- 
ment which prevailed down to the time of the Revo- 
lution. Any liberality in legislating for the Colonies 
was unknown, and all freedom of trade was discour- 
aged and repressed. " Our possessions " and " our 
subjects " became the expression of a general feeling ; 
and even Chatham, Whig as he was, and opposed to 
their taxation, declared in Parliament that he would 
not permit a hobnail to be manufactured in them, 
forgetting that a prohibition of the kind was in 
reality a tax levied upon the American consumer. 



COLONIAL TAXATION. 21 

The policy of England being thus of an exclusively 
commercial character, and pursued for her own advan- 
tage and national aggrandizement, little attention 
was given to their political condition ; and they were 
permitted, in a great measure, to develop their 
domestic institutions, which, from the necessity of 
the case, could not be other than democratic. The 
foundation was laid at their settlement. The birth- 
place and home of feudalism was in Europe. Aris- 
tocracy is not the material of which emigrants are 
made ; and in most of the Colonies, a sufficiency of 
wealth had not yet been created to cause a division 
of social rank. So long as there was no interference 
with their self-government by the authorities at 
home, and no attempt was made at internal taxation, 
opposition to England's requirements did not arise. 
They needed protection, and she afforded it. Capi- 
tal was necessary for the transaction of business and 
the development of the country ; and her merchants 
and bankers supplied the requisite funds, and granted 
a liberal credit to their transatlantic customers. The 
people were prosperous ; and the tribute exacted 
from them was not seen, nor, indeed, acutely felt. 
Agriculture being their main pursuit, they paid little 
regard to external regulations which had been long 
established, and were not rigidly enforced. All the 
inhabitants displayed a strong attachment for that 
country from which most of their ancestors had 



22 THE LIFE AND TIMES OF JOHN JAY. 

sprung. Thence had been derived their cherished 
ideas of personal liberty and popular rights. They 
were proud of her glory and greatness ; and a com- 
mon origin called forth their affection, and drew them 
to her. Four centuries of parliamentary life, with 
its grand associations, belonged alike to the two 
countries. English literature and English law were 
a mutual heritage, and the language of the Bible and 
Shakspeare was their mother tongue. The love of 
country, even if transplanted, had not yet taken deep 
root ; and to England the colonists still applied the 
endearing appellation of "home." Their sympathy 
for the land of their forefathers had been evinced by 
pecuniary assistance extended when misfortune had 
there arisen, and men and money had been liberally 
contributed to fight the battles of the parent state 
in all parts of the world. 

Such were the relations between the countries 
down to the close of George the Second's reign. 
While, in return for the protection extended to her 
American colonies, England monopolized their im- 
ports and exports, both yearly increasing in mag- 
nitude and value, she yet largely refrained from 
interfering with their internal regulations and politi- 
cal development. Their great distance from the 
central government had, at times, induced some of 
them to exercise unquestioned power of the highest 
sovereignty ; and Massachusetts, a hundred years 



COLONIAL . TAX A TION. 



before, had asserted that she possessed full legislative 
and executive authority. Altogether, English sub- 
jects in America enjoyed great freedom, and were 
prosperous, happy, and contented in their dependent 
condition. There is no doubt, however, that, as the 
colonies grew, and waxed strong, the connection 
would ultimately have undergone a change. Choiseul 
thought he foresaw the time when they would aim 
at independence, and the philosophic Turgot was 
satisfied that a separation was near at hand ; but in 
the American correspondence and records of the 
time, we find no such idea broached, except as some- 
thing that might occur in the distant future. It was 
for a king who wished to govern as well as reign, 
supported by a minister with contracted views of 
public policy, to disturb the harmony, and finally to 
sever the bonds, between the mother country and 
her progeny across the Atlantic Ocean. 

England had emerged from the Seven Years' 
War, rich in the spoils of conquest, and proud of 
her military renown, but burdened with a debt which 
appalled the taxpayers of the United Kingdom. 
The people had been scandalized by the open licen- 
tiousness of the late king ; and the pure morals and 
domestic virtues of their young sovereign, while 
concealing his narrow intellect, won him a confidence 
and respect soon to be rudely shaken by the expul- 
sion of Wilkes, "The Letters of Junius," and the 



24 THE LIFE AND TIMES OF JOHN JAY. 

American disturbances. Profoundly impressed with 
the dignity of his station, conscientious, prejudiced, 
and stubborn, his personal influence over national 
affairs was always marked ; and in the early part of 
his reign, the genius of the English Constitution was, 
at times, by the force of a strong will, made to bend 
to his wishes. 

After the close of hostilities with France, the 
most important matter claiming the consideration of 
the cabinet was an adjustment, of the revenues to 
meet the demands upon the treasury. The princi- 
ples of Newcastle and Walpole still predominated, 
and, since the retirement of Pitt from the head of 
affairs, corruption had been steadily increasing. 
With rare intervals, the Tory leaders had been 
debarred from public ofifice for more than half a 
century ; and now that the Whig oligarchy was over- 
thrown, provision had to be made for the victors and 
their needy followers. Government loans were dis- 
tributed among these latter, to be afterwards resold 
at a large profit : seats in Parliament, for ministerial 
supporters, were purchased with public money, and 
its benches were thus filled with pensioners and place- 
men. Attention had been drawn to this condition of 
things as sapping public virtue and private morals, 
and its baneful influence upon the legislation of the 
country pointed out. How to increase his power, 
provide for his new friends, and mollify the taxpayer, 



COLONIAL TAXATIOX. 2$ 

was now the problem before the king, pressing for a 
solution. 

He called to his assistance a younger brother of 
Pitt's wife, a statesman who had given some study to 
the subject of revenue, and who, like other minis- 
terial specialists, deemed that all government was 
embodied in that part which he best understood. 
Burke happily described Grenville as "one of those 
who believe regulation to be commerce, and taxes to 
be revenue ;" or, as Swift said of a predecessor, "he 
thought the whole art of government to consist in 
the importation of nutmegs and the curing of her- 
rings." The king, whose perception of character 
was quite accurate within a limited range, pro- 
nounced him a solemn prig ; but his manner in the 
closet was condoned by the measures he advocated 
in the cabinet, and for these he was tolerated. 
Where could the minister better turn for relief to 
his sovereign than to the dependencies across the 
Atlantic ? That they were prosperous, and able to 
sustain a heavy tax, was evident ; for they had vol- 
untarily contributed an undue proportion toward the 
late war, and the supreme legislature had recognized 
this patriotic action by refunding them a part of the 
excess. The amount he proposed to draw from 
them would in the beginning be small ; but, the prin- 
ciple once admitted, it could be indefinitely increased. 
The policy he suggested was that all the colonies — 



26 THE LIFE AND TIMES OF JOHN JAY. 

chartered and proprietary alike — should be reduced 
to the same condition as the royal Provinces ; that 
a direct and permanent income should be derived 
from them, while, at the same time, the commercial 
regulations heretofore enacted were to be rigidly 
enforced. Other measures were to follow, which, 
together with these, would effectually destroy their 
illicit yet lucrative traffic. In other words, the 
policy of making them profitable simply as a mar- 
ket for British productions was. to be abandoned, 
and recourse had to the Spanish system of extorting 
from them a direct revenue. 

It will be readily perceived how acceptable such 
counsels were to the king, who wanted to stop the 
murmurings of the taxpayer at home. His inten- 
tion from the beginning had been to become inde- 
pendent of the Whig party, and he was resolved to 
make his government one more purely personal. 
The patronage beyond the sea, thus thrown into his 
hands, would in time enable him to accomplish these 
ends, while providing offices for his courtiers and 
the decayed aristocracy. The nation's support of 
the contemplated measures was calculated on, as the 
burden of taxation would thereby, to a considerable 
extent, be shifted upon the shoulders of those whose 
complaints would be unheard in Parliament, and 
whose influence unfelt at the hustings. 

Sir William Keith having suggested a Stamp Act 



COLONIAL TAXATION. 2/ 

for the colonies early in the century, Granville chose 
a similar plan as the one with which to begin, and 
notified the colonial agents of his intention to allow 
them twelve months to ascertain the feelings of their 
constituents before carrying it into effect. In con- 
versation with Dr. Franklin, he avov^red his fixed 
determination to compel the colonies to contribute 
their share to the support of the imperial govern- 
ment, but expressed a willingness to substitute for 
the proposed tax, one more agreeable to them, if 
such could be found. Franklin, on his part, does not 
appear to have objected to the principle of colonial 
taxation upon the ground of its unconstitutionality, 
probably, for the reason that in Pennsylvania — which 
province alone he then represented — this right had 
been reserved to Parliament, A similar proviso was 
not, we believe, in any of the other charters. 

In pursuance of the course adopted, the Commons 
resolved that it was expedient to charge in America 
certain stamp duties, such as were paid in England ; 
and notice was given that a bill to that effect would 
be introduced the following year. The resolution 
was skilfully drawn to allay opposition, and its condi- 
tions seemed equitable. Surely, the Americans 
would not object ! It proposed to lay upon them 
only a part of the burden borne by their fellow- 
sufferers in England, and the revenue contributed by 
them was to be spent for domestic purposes. The 



28 THE LIFE AND TIMES OF JOHN JAY. 

tax was indirect, moderate, and, as it was self-col- 
lecting, would require the appointment of but few 
officials. 

When the measure came before Parliament at the 
next session, no protest was heard ; for being a 
money-bill, against which petitions are not received, 
it passed both Houses without attracting any especial 
notice from the Liberal members. The Lords were 
unanimous in its favor. Well was it, however, that 
the people of America were more alive to the danger 
to be apprehended from this cloud no bigger than a 
man's hand, yet which, increasing in volume, and 
descending, would eventually sweep away the dikes 
which their ancestors had by a free expenditure of 
blood and treasure erected to stay the steady flow of 
executive encroachment. Fortunate, too, was it for 
the cause of freedom, that they were endowed with 
virtue enough to resist its approach. It may be ques- 
tioned whether the minister, after having announced 
his intention of introducing the Stamp Act, did not 
make a mistake in deferring its passage for so long a 
time. Had he at once carried out his purpose, the 
opposition in the colonies would have been sporadic, 
and perhaps readily overcome before the lurking 
danger was generally perceived. 

It was only at a later date that the Whig states- 
men of England realized that the success of the 
king's policy in America might be followed by the 



COLONIAL TAXATION. 29 

establishment of arbitrary and military rule in their 
own country, and the throne so strengthened as to 
impair domestic institutions. As Burke expressed 
it, " It will become an apt, powerful, and certain 
engine for the destruction of our freedom here in 
England." 

The bill passed Parliament in March, 1765, and 
was to take effect the following November. We 
have seen that the attention of the colonists had 
already been drawn to its provisions, yet the news 
of its enactment was received by them at first as a 
staggering blow. Soon the great deep of colonial 
life was stirred, and denunciations of it were heard 
from one end of the country to the other. It was an 
insidious proceeding that must be resisted at the 
outset. The amount assessed on Hampden was but 
a few pence, yet it had involved the liberties of a 
nation. When the eventful day arrived, bells were 
tolled, and muffled drums sounded. Tax-agents were 
forced to resign ; and in some places the people de- 
termined to ignore the Act, and proceed in business 
without complying with its requirements. In other 
portions of the country, merchants agreed to import 
no more British manufactures after the New Year, 
unless it should then have been repealed. In New 
York, Golden, the lieutenant-governor, was burned in 
effigy, and compelled to seek refuge in the fort with 
the stamped paper. The Virginia House of Burgesses 



30 THE LIFE AND TIMES OF JOHN JA Y. 

was in session when the news of the action of Parlia- 
ment was received ; and on the motion of Patrick 
Henry, then a young lawyer, it was resolved that 
the General Assembly had the exclusive authority 
to levy taxes, and that whoever maintained the con- 
trary should be deemed an enemy of the province. 
Massachusetts took the alarm, and, asserting her 
sole right to pass laws binding her people, invited 
her sisters to join with her in opposing the measure, 

James Otis further stimulated public feeling by 
the publication of a work demonstrating that all tax- 
ation of the people of America by Parliament was 
inconsistent with their rights as native-born subjects. 
A tendency to unity might be noticed about this time 
in the occasional substitution of the term " Ameri- 
can" for "Colonist;" and as the trouble was gen- 
erally attributed to the arbitrary counsels of Lord 
Bute, a North Briton, the word " British " began to 
assume the place that " English " had previously held. 

In compliance with the suggestion of Massachu- 
setts, delegates from nine colonies assembled at New 
York in October. This body denounced the imposi- 
tion of taxes upon them without their consent, 
entered into a non-importation agreement, and peti- 
tioned the King and Parliament for a redress of their 
grievances. When an account of these proceedings 
reached England, it produced a profound sensation 
throughout all classes. Parliament was not in ses- 



COLONIAL TAXATION. 3 1 

sion at the time, and the ministry were at a loss to 
know by what means to overcome the passive but 
determined resistance of a united people. No mili- 
tary force was on the spot, nor would such have 
been available. The judges of the colonial courts 
sympathized with the opposition, and the juries 
were made up of those who set the enactments at 
defiance. The attention of the Whig leaders abroad 
was at last drawn to the danger to be feared from 
enforcing the claim of supremacy, and the cause of 
the colonies found eloquent and efficient advocates 
wheji Parliament again assembled. Ere that time, 
the king's dislike of Grenville had resulted in the 
establishment of a new administration under Rock- 
ingham with Burke as his private secretary, and 
Dowdeswell as chancellor of the exchequer. A 
cabinet of this complexion, entering upon ofBce 
under such circumstances, could but advise the re- 
peal of a law manifestly contrary to the spirit of 
English institutions. The king, on the other hand, 
looking upon the uprising in America as subversive 
of all authority, and a denial of the jurisdiction of 
the home government, was opposed to this pro- 
cedure. After considerable hesitation, he finally 
yielded his assent, provided a clause should be at- 
tached to the Act of repeal asserting the power to 
bind the colonies in all cases whatever. Fatal reser- 
vation ! However the patriots of America may 



32 THE LIFE AND TIMES OF JOHN JAY. 

have differed in opinion as to the supremacy of the 
King and ParHament, this would, if enforced, neces- 
sarily drive them all into resistance. It would sweep 
away at one stroke every vestige of civil liberty. 
Chatham declared the Magna Charta, the Petition of 
Right, and the Three Statutes, were the Bible of the 
English Constitution ; but the colonist could under 
this claim be deprived of every right that they se- 
cured to English subjects at home. Rockingham 
remained in office scarcely a year, when a re-organi- 
zation of the ministry took place under the newly 
created Earl of Chatham, with Charles Townsend as 
chancellor of the exchequer. 

Upon the partial adjustment of the difficulty, agi- 
tation at once subsided in America ; and the people, 
fancying their victory had established the principle 
that they could be taxed only by their representa- 
tives, anticipated no further trouble. It was true, 
that, while removing the present grievance, the para- 
mount authority of Parliament had been emphatically 
asserted ; but this, it was assumed, had been done to 
save its pride, and with no purpose of enforcement 
except as heretofore, in the regulation of their com- 
merce. In New York, the repeal was looked upon 
as a final settlement ; and, in the exuberance of their 
joy, the people dismantled a ship, and jDlanted its 
mast on a high part of the city, surmounted with 
busts of George III. and Chatham. 



1 



THE DESTRUCTION OF TEA. 33 

IV. ^'''--^-— — ' 

THE DESTRUCTION OF TEA. 

CHATHAM had entered the ministry in obedience 
to the public demand ; but his health was shat- 
te«red, and only at long intervals was he able to attend 
its meetings, or even to be consulted about questions 
under consideration. It was, in fact, a body without 
a chief to formulate a policy, and carry it into effect ; 
and thus it drifted along as the tide served. Town- 
send, among his contemporaries, bore the reputation 
of possessing brilliant parts, though volatile, wilful, 
and unstable in character. In America he is chiefly 
remembered as the progenitor of a measure which 
re-opened a controversy between England and her 
dependencies that finally led to their separation. 
During a debate in the House of Commons, he incau- 
tiously pledged himself to prepare a bill which would 
secure a revenue from the colonies without arousing 
their opposition. Chatham could not be referred to 
at the time ; and a Whig cabinet thus became com- 
mitted to a project, against the principles of which 
its members had hitherto protested. 



34 THE LIFE AND TIMES OF JOHN JAY. 

Townsend's plan, when introduced, was found to 
embrace the imposition of a duty upon tea, paints, 
and glass ; while, to render it less distasteful to the 
Americans, the revenue derived therefrom was to be 
applied to the support of their local governments and 
the maintenance of their judiciary. As enacted, it 
further provided for the establishment of a board 
of trade at Boston, and legalized the writs of assist- 
ance, which Otis, with impassioned eloquence, had 
denounced as unconstitutional. It also required 
naval officers to enforce the various provisions relat- 
ing to commercial intercourse, thus destroying a 
prosperous traffic with the British and Spanish West 
Indies. Later on the assemblies were called upon 
to supply the military force then at hand with certain 
specified articles, and to furnish them with suitable 
quarters upon landing. 

Contrary to Townsend's anticipations, the colonists 
objected to this entire scheme, and failed to appreci-' 
ate his generous proposal to disburse the money for 
their benefit. They needed no protection from 
domestic enemies, and treasured the right of main- 
taining their courts and governments themselves. 
The New- York Assembly was summarily suspended 
for refusing to supply military stores, while the 
General Court of Massachusetts was dissolved for 
the same offence ; and the troops which had arrived, 
were, by order of the authorities, quartered in Faneuil 
Hall and other public buildings. 



THE DESTRUCTION OF TEA. 35 

Sherlock, the Bishop of London, had proposed to 
the king the erection of America into an episcopate 
of the Established Church ; and the rumor of this, 
getting abroad, created general alarm among the 
New-England congregations. A jealousy of the 
designs of the mother country was by this time 
thoroughly aroused, and a determination to resist 
her encroachments common to all. 

Louis XV. had watched with deep interest the 
opening of the quarrel, and in 1764 despatched Pon- 
tleroy to America to report the feelings of the people. 
Four years later, Choiseul, believing the fulfilment of 
his prophecy near at hand, directed his minister at 
St. James to employ a trusty agent ; and the future 
Baron DeKalb accordingly traversed a portion of 
the country, for the purpose of observing public 
sentiment. 

In the controversy growing out of the proceedings 
of the Home Government, nothing is more remark- 
able than the superior ability with which the Ameri- 
can side was handled. Its advocates were men who 
had early become conversant with Blackstone's expo- 
sition of the common law. Their dearest interests 
were involved. They had studied the questions at 
issue, the principles lying at the foundation of gov- 
ernment, and by skilful logic lai.d bare the arbitrary 
nature of the ministerial measures. On the other 
side were hackney writers with no personal feeling 



36 THE LIFE AND TIMES OF JOHN JAY. 

in the matter, working for their pay, or, like Dr. 
Johnson, serving the ministry in return for favors 
already received. The village leaders became im- 
bued with patriotic arguments, and were prepared, 
in their turn, to impress them upon their immediate 
followers. The agitation was extreme. Each hamlet 
had its meetings, and every household grew familiar 
with the subject. 

It is ominous of change when a people distrust 
the ground on which sovereign authority is based. 
The inquiry now arose among the colonists as to 
their relation towards the parent state, and whether 
the fact of her subjects settling in America estab- 
lished England's claim to assume jurisdiction over 
them, or even to control their commerce in the man- 
ner heretofore conceded. Jay subsequently declared 
that it did not, and that they had the right to form 
whatever style of government they pleased. The 
cardinal principle, that taxation and representation 
are inseparable, had been emphatically ingrafted on 
the English Constitution. Yet it was asserted, that, 
under the guise of regulating trade, they were 
practically divorced in America. The King and Par- 
liament had before claimed the power to prohibit 
manufactures, and determine with whom the people 
should trade. They now undertook to modify the 
provisions of the charters under whose guarantees 
settlements had been effected ; to keep up a standing 



THE DESTRUCTION OF TEA. 37 

army in the country, and compel taxes to be levied 
therein for its support.' The royal governors were 
instructed to withhold their approval of other assess- 
ments, and the revenue officers were empowered to 
search houses for contraband goods without a specific 
warrant based on probable cause. The authorities 
were required to enact certain laws ; and in the event 
of refusal, their meetings were to be suspended. It 
was, moreover, decided that the superior judges 
should hold office at the king's pleasure alone, and 
not during good behavior as in England, the infe- 
rior ones being removable at the discretion of the 
governor ; that political offenders should be trans- 
ferred into a foreign jurisdiction where a trial by their 
peers could not be obtained, while the sheriffs were 
to be appointed by the governors with authority to 
select juries which had heretofore been chosen by 
the inhabitants. It was shown that these claims 
were tyranpical and dangerous ; that in the previous 
century the attempted enforcement of some of them 
had caused a predecessor of the king to lose his 
head ; and that, if successfully established, life, lib- 
erty, and property, in the colonies, would be held 
only by the sufferance of an irresponsible power be- 

' Burke, their agent, wrote to the New-York Assembly that " prerogative 
was to be strengthened as much as possible ; and it was thought expedient to 
find in the tractable disposition of some provinces a check upon the turbulent 
manners and a balance to the less manageable plans of government in others." 



38 THE LIFE AND TIMES OF JOHN JA V. 

yond the sea. The aristocracy of England had been 
mainly aggrieved by the proceedings of the second 
James. The exactions in royal France had crushed 
the peasantry, while these affected alike all classes 
in America. 

As yet, there was a difference in the reasoning 
of the popular leaders. Some drew a distinction 
between taxes laid for the purpose of raising a 
revenue, and those for the regulation of commerce. 
Others admitted the supremacy of Parliament, but 
denied the right of taxation by a body in which they 
were not represented ; while many went still farther, 
and believed that the king and provincial legislatures 
alone had the power to impose it upon them. All, 
however, acknowledged that allegiance was due the 
sovereign, but claimed that there were correlative 
rights and obligations, and, while recognizing the 
fact that the colonies had been settled without aid 
from the king, were yet, in return for protection 
against foreign enemies, willing to concede to the 
Home Government the regulation and monopoly of 
their commerce as heretofore, and contribute volun- 
tarily to the common defence of the empire. 

It was not yet too late for the King and Parliament 
to recede from their untenable position without loss 
of credit, and restore harmony ; but such a conces- 
sion was perhaps not to be expected from a stubborn 
monarch and a haughty assembly. 



THE DESTRUCTION OF TEA. 39 

Upon the re-organization of the British cabinet, 
in the year 1770, Lord North became prime min- 
ister. Amiable in private life, of pure morals, genial, 
witty, and personally popular, he was, by subservi- 
ency to the king's wishes, destined to have his name 
intimately associated with the most corrupt and un- 
fortunate period of modern English history. In 
quiet times, and under another sovereign, he would, 
perhaps, have proved a successful minister, but was 
by nature unfitted to encounter the storms then 
breaking upon the political world. He lacked 
sufficient greatness of character to resist the bland- 
ishments of the king, and when, by force of circum- 
stances, compelled to yield, conceded just enough to 
discourage his supporters without conciliating his 
opponents. 

The non-importation associations which had been 
formed in the colonies had the anticipated effect. 
Commercial distress ensued in England, and petitions 
for a repeal of the obnoxious Acts flowed in upon the 
two Houses from the manufacturers and merchants 
in all parts of the kingdom. At the instance of the 
prime minister himself, the imports laid three years 
before were removed, except one of threepence per 
pound upon tea ; that being retained, as he said, to 
establish the principle of parliamentary right. To 
reconcile the Americans to this, a drawback of over 
sevenpence was allowed upon all shipments to them 



40 THE LIFE AND TIMES OF JOHN J A V. 

from the United Kingdom. Encouraged by their 
partial victory, and looking upon this duty as im- 
posed without authority, the people generally ab- 
stained from the consumption of tea, which, in 
consequence, accumulated in the warehouses of the 
East India Company. It continued to increase 
until that corporation became financially embar- 
rassed, and, in 1773, was compelled to apply to the 
Government for relief. A further drawback was 
thereupon authorized, the whole being equivalent to 
the English import dues, thus enabling the Ameri- 
cans to procure their supply at ninepence less than 
their fellow-subjects at home. Under this provision 
vessels were freighted with the article for various ports 
in America. The proceeding brought the dispute be- 
tween the countries to a direct issue. The colonists 
were unanimous in resisting the imposition of a tax 
the principle of which the English authorities strove 
to sustain by abating a larger duty than was neces- 
sary to be paid. Now or never the question had to 
be definitely settled whether Parliament possessed 
the right to levy taxes without the consent of the 
inhabitants. 

Information of the shipments soon reached 
America ; and by the time the vessels arrived, every 
preparation had been made. At some of the ports, 
the consignees were compelled to reship the tea; at 
some, its landing was prohibited ; while at others, it 



THE DESTRUCTION OF TEA. 41 

was stored in cellars and damp places, where it ulti- 
mately spoiled. At Boston more decisive measures 
were required. As Josiah Ouincy said, she had been 
so galled without, and vexed within, that patience 
with her had ceased to be a virtue. The inhabitants 
of that place were resolved that the detested article 
should not be landed, while the governmental authori- 
ties were equally determined not to permit the ships 
to return without having discharged their cargoes. 
Fearing that, in spite of their watchfulness, the tea 
might be smuggled ashore, a number of reputable 
citizens, calling themselves "Mohocks," in imitation 
of the young bloods of London, boarded the vessels 
after dark, broke open the chests, and emptied their 
contents into the sea. After performing this resolute 
act in a calm and orderly manner, they quietly dis- 
persed to their several homes. 

The news of this occurrence provoked general 
indignation in England. It was looked upon as a 
defiance of Parliament, which, if permitted to pass 
unpunished, would induce the people to cast off all 
authority, and assert their independence. Feeling 
the contempt thrown upon it, that body forthwith 
launched its bolts against the town of Boston and 
the Province of Massachusetts Bay. At the instiga- 
tion of the ministry, it enacted that the harbor of 
Boston should, after the first day of the following 
June, be closed against the landing and loading of 



42 THE LIFE AND TIMES OF JOHN JAY. 

all goods, wares, and merchandise ; and the custom 
house, with its officers, removed to Salem, where the 
Governor and General Court were directed to assem- 
ble. By a subsequent Act, the charter of the province 
was arbitrarily altered, all counsellors and judicial 
officers being thereafter appointed by the Crown. It 
was provided, moreover, that any person indicted 
for a homicide committed while aiding a magistrate, 
might have his trial removed to Great Britain or 
some one of the other colonies,, and that, except at 
the time of an election, no public meeting should be 
held without permission from the governor. All 
the measures had the cordial support of the king, 
and some of them were prepared by the ministry at 
his suggestion. 

By these sweeping provisions, the inhabitants of 
Boston — loyalists and patriots alike — were made 
to suffer for the destructive outbreak of a few indi- 
viduals. An independent judiciary, which had been 
wrung from the first Charles, was laid at the feet of 
a sovereign who resembled him in character ; and the 
people were deprived of the right to assemble, and 
protest against the proceedings of their rulers, how- 
ever illegal and arbitrary their tendency. In thus 
prohibiting town-meetings, the ministry struck at the 
very life of New-England democracy. The power 
to levy custom dues once established, with a governor 
appointed and paid by the Crown, a judiciary holding 



THE DESTRUCTION OF TEA. 43 

their seats at the pleasure of the king, and the citi- 
zens forbidden to meet peaceably, it is difficult to see 
what barrier remained against further encroachments 
by the Government. 

When the purport of the enactments became 
known in America, the public mind was deeply 
stirred. Sympathy with the devoted town and prov- 
ince was everywhere expressed, and assistance prof- 
fered to their suffering population. It was felt that 
the punishment inflicted was not so much on account 
of the destruction of the tea as for the stand which 
all the colonies had taken in defence of their liber- 
ties. The blow had fallen where it did, simply because 
the earliest and most active opposition had been at 
that point ; and the late series of measures was but 
the inauguration of a policy to overthrow the rights 
of all. 

The Act closing the harbor went into effect at the 
appointed time, putting an end to commerce, and 
causing great distress among persons thereby de- 
prived of support from their accustomed avocations. 
It failed, however, to break the spirit of the people, or 
to induce an abatement of resistance to the assumed 
authority of the imperial government. Delegations 
from several towns in the province assembled, and 
determined to discontinue importation from England ; 
and a little later a most formidable weapon was placed 
in the hands of the Whigs by the organization of 



44 THE LIFE AND TIMES OF JOHN JAY. 

Samuel Adams's "Committees of Correspondence." 
The General Court of Massachusetts vigorously pro- 
tested against the parliamentary measures, and de- 
nounced the alteration made in the provision of the 
charter. It also prepared a circular to the other 
colonies, setting forth the necessity of harmonious 
action in the present crisis. The people, on their 
part, evading the law, held adjourned meetings from 
time to time, thereby keeping alive the fire of 
patriotism, and sustaining and encouraging their 
representatives in their independent attitude. 

It was from Virginia that the most effective sup- 
port came. Fortunately, her House of Burgesses 
was in session when information of the passage of 
the Port Bill was received. That body, under the 
leadership of Randolph, Lee, and Henry, at once 
entered upon its journal, and published abroad, a 
vigorous protest against the recent Acts, and, at the 
same time, set apart the first of June as a day of 
fasting, prayer, and humiliation. The ire of the gov- 
ernor was aroused by their boldness in condemning 
the proceedings of the imperial legislature, and an 
immediate dissolution of the House followed. Unde- 
terred by his indignation, the late members assem- 
bled at the Raleigh Tavern, and denounced the Port 
Bill, affirming that an attack upon one of the colonies 
was an attack upon all. They further directed their 
Committee of Correspondence, which had by that 



THE DESTRUCTION OF TEA. 45 

time been formed, to confer with similar bodies upon 
the expediency of the several colonies annually 
assembling in a general congress for the purpose of 
deliberating upon their common interests. 

An American Parliament had always been depre- 
cated by the English authorities. Penn, as early as 
1697, had submitted to the Board of Trade "a plan 
for the union of the colonies ; " and Franklin pro- 
posed a like measure at the time of the Albany 
conference, but both had failed. Now, however, the 
minds of the patriot leaders seemed spontaneously 
directed towards a union which had been made pos- 
sible by the distress of Massachusetts ; and the idea 
of a congress assumed a practical shape. The pro- 
ceedings of the King, Ministry, and Parliament thus 
called into being an assembly representing American 
interests, and necessarily antagonistic to the preten- 
sions of England. Throughout the entire contro- 
versy, prior to the Revolution, there was always 
displayed, on her part, an apprehension that her 
progeny were aiming at a separation and the estab- 
lishment of that independence into which she was 
soon to drive them. 



46 THE LIFE AND TIMES OF JOHN JAY. 



V. 

PREPARING FOR A CONGRESS. 

INFORMATION reached New York on the after- 
noon of May 1 6 that the harbor of Boston was 
soon to be closed, producing a profound sensation 
among the merchants, who thus beheld their own 
rights and fortunes subjected to the mercy of a for- 
eign assembly, whose jurisdiction they had emphati- 
cally repudiated. They at once took counsel together, 
and nominated fifty citizens to form a committee of 
correspondence, solicit contributions, and in other 
ways aid and encourage their brethren of Boston. 
When a special messenger, bearing the intelligence, 
arrived the following day, a public meeting of the 
inhabitants was convened, and a list of the persons 
already chosen laid before it for approval. Several 
of the prominent merchants were of British birth, 
holding close relations with their kindred in the old 
country, and hoped to guide and control the move- 
ment by participating in it. Many sincere friends 
of government had been placed on the committee. 
Indeed, Jones, the Tory historian, claims that they 
formed the majority of its members. 



PREPARING FOR A CONGRESS. 47 

The willingness to serve of those selected having 
been ascertained, an additional name was added, and 
the appointment of the whole confirmed at a meeting 
held three days later. Four days after this, Jay, 
Lowe, McDougal, and Duane, who had been deputed 
for the purpose, reported to the main body the 
draught of a reply to the official letter which had 
been received from the Boston Committee of Corre- 
spondence. This paper, which was from Jay's pen, 
said, " The cause concerns the whole continent, and 
we can see no remedy unless it proceeds from the 
joint act and approbation of all. We therefore con- 
clude that a congress of deputies from the colonies 
in general is of the utmost moment, and that it 
ought to be held without delay." 

This assembling in a common Parliament marks 
the beginning of a new era in American history, and 
it has been a fruitful subject of discussion to whom 
the honor of having suggested the measure is due. 
There can be no doubt, however, that the idea was 
in the minds of all. Sam Adams had favored the 
plan the year before ; and a letter from Arthur Lee, 
then in London, recommending a meeting, was al- 
ready written, and on its way to America. The 
problem confronting them was too intricate for any 
one of the colonies to solve, .^sop's fable of the 
bundle of twigs was patent, and a danger which 
threatened all would naturally induce them to seek 



48 THE LIFE AND TIMES OF JOHN JAY, 

safety in mutual support. Besides, a partial con- 
gress had been successfully tried before ; and what 
was more likely than that they should again come 
together, and present an undivided front to their 
enemies abroad. 

Virginia declares herself to have been the parent 
of the measure, as her dissolved House of Burgesses 
had urged an agreement among the colonies to con- 
sider the best means of resisting the acts of the 
ministry ; while New York rests her claim upon the 
reply of Jay's committee, to which reference has been 
made. Neither of them, however, is entitled to the 
distinction. Its advisability was first publicly sug- 
gested at a town-meeting held at Providence on May 
17, soon after the news of the Port Bill had been 
received, when the deputies from that place were 
requested to use their influence in the General 
Assembly to promote a congress "for establishing 
the firmest union," This movement was followed, 
four days later, by the important city of Philadel- 
phia. When replying to the Boston letter, her mer- 
chants said that the means of securing redress 
seemed to rest between non-importation, as had been 
proposed, and a general congress of deputies ; and 
added, they had reason to think " the latter would be 
the most agreeable to the people of the province." 
The New York and Virginia committees took simul- 
taneous action, as we have seen, on May 23 ; but 



PREPARING FOR A CONGRESS. 49 

there is no reason to suppose that the proceedings 
of any one of the four were known to the others at 
the time, nor that their own were affected thereby. 

The ministerial blow had been aimed at Massachu- 
setts ; and so far, the quarrel was mainly confined 
within her borders. It was, therefore, not proper for 
her to apply for assistance ; but she gladly welcomed 
the proposal when spontaneously made, and, with the 
cordial approval of her neighbors, fixed upon the city 
of Philadelphia as the place, and the beginning of 
autumn as the time, for the meeting. Upon the 
New-York committee, as the only organization in 
the province antagonistic to the measures of the 
ministry, the important duty of selecting delegates 
seemed to rest. This was performed on July 4, by 
the nomination of Philip Livingston, Lowe, Alsop, 
Jay, and Duane, — three merchants and two lawyers. 
The first named was wealthy, and, in the language 
of Adams, " a downright, straightforward man ; " a 
bold, determined patriot, who died at his post the 
year after affixing his signature to the charter of 
American freedom. Duane and Jay were both mem- 
bers of Congress when the Declaration of Inde- 
pendence was issued ; but, less fortunate than their 
colleagues, they were, at the time, in attendance 
upon the New-York convention, and were thereby 
deprived of the honor of attaching their names to 
that instrument, Lowe rather sympathized with 



50 THE LIFE AND TIMES OF JOHN JAV. 

Parliament; while Alsop — one of those patriots un- 
able to bear the thought of a separation — withdrew, 
on the passage of the Declaration, to his estate near 
the city, and afterward became a refugee in England. 
The two lawyers were strong Episcopalians, and the 
Tory leaders fancied that their religious sentiments 
would induce them to lean toward the mother 
country. 

The affairs of the city at that period were very 
much controlled by the merchants, who considered 
themselves capable of governing without interfer- 
ence, and had, so far, been permitted to manage the 
trouble with England. A democratic spirit was, 
however, abroad, which had begun to contest their 
supremacy. To a complaint against the recent pro- 
ceedings, their adherents replied, "The gentlemen 
appointed on the committee of fifty are of the 
body of merchants, men of property, probity, and 
understanding, whose zeal for the public good cannot 
be doubted, and whose situations point them out as 
the proper persons to hold so important a trust." 
The mechanics had become a numerous body, and 
were rapidly rising into prominence. They, too, had 
their trade organization, were more uniformly op- 
posed to the ministerial measures than the mer- 
chants, and, should the dispute with England result 
in hostilities, a large share of the burden would 
necessarily rest upon their shoulders. Under these 



PREPARING FOR A CONGRESS. 51 

circumstances, they naturally thought they should 
have been consulted in the choice of delegates to the 
intended congress. 

There was still another body of Whigs in the city, 
styling themselves " Sons of Liberty." They had 
been especially active during the troubles arising from 
the Stamp Act, and were re-organized upon the news 
of the Port Bill, denouncing it through the streets 
as barbarous ; and, their passion being roused, they 
were prepared to carry out by violence any course 
suggested against the Government. Of these, Alex- 
ander McDougal, a Scotchman, was accounted the 
principal spokesman and leader; and it may have 
been with the view of placating this turbulent element 
that he was nominated by " the gentlemen mer- 
chants " upon their committee. He was an ener- 
getic, fearless, and determined man, had been 
recently imprisoned for a libellous hand-bill reflecting 
on the authorities, and was disposed to drive matters 
to extremity. He probably thought, could some one 
of the five be displaced, he might, by the aid of those 
whom he controlled, secure the position for himself. 
He accordingly proposed to the merchants that the 
names of the congressional delegates should be sub- 
mitted to the mechanics for their approval, and after- 
ward placed before the freeholders of the city for 
confirmation. That highly respectable and dignified 
body thought themselves quite as capable of mana- 



52 THE LIFE AND TIMES OF JOHN JAY. 

ging political as commercial affairs, and, failing to see 
the propriety of submitting their action to the ap- 
proval of others, rejected the motion. McDougal 
thereupon withdrew from the committee, with some 
of his supporters, and called what was long known as 
the famous meeting in the fields, to protest against 
the selection that had been made, and to substitute 
others more nearly representing his own opinions. 
His objection did not lie against either Jay or Duane, 
as he had served with them, and was well aware of 
their devotion to the country's interests. 

At the meeting, a strenuous effort was made to 
form a party, and carry the election. The people 
were warned to beware of the merchants' committee, 
and exhorted to imitate Boston in supporting non- 
importation. The condition of the patriot affairs had 
become critical, as any division among the Whigs 
in the face of the numerous friends of Government 
would of necessity prove disastrous to their cause. 
"The young West Indian," Alexander Hamilton, 
a stripling of seventeen years of age, divining the 
danger, appeared unexpectedly, and by his per- 
suasive eloquence induced those present to refrain 
from the' extreme acts intended. Their resolutions 
inveighed against the Port Bill, declared the shutting 
up of any harbors to be unconstitutional, that an 
attack upon the liberties of any one of the colonies 
was an attack upon all, and pledged themselves to 



PREPARING FOR A CONGRESS. 53 

abide by all measures of Congress. Though oil had 
been poured upon the troubled waters, the swell did 
not immediately subside. In the merchants' commit- 
tee room, the next morning, this irregular meeting 
was condemned, and the conduct of McDougal and 
his followers commented upon with severity, as calcu- 
lated to arouse jealousy, and lead to dissension. On 
the other side, a delegation from the mechanics 
addressed the nominees, requesting a statement of 
their opinion as to the proper course to be pursued 
at Philadelphia, declaring, should the reply not prove 
satisfactory, they had candidates of their own whom 
they were prepared to substitute. Without commit- 
ting themselves to any definite procedure, those 
gentlemen responded that they would, at the coming 
conference, endeavor, to the utmost of their ability, 
to put into execution any measures that might be 
thought conducive to the general welfare of the 
colonies. 

The meeting in the fields, nevertheless, had a 
decided influence upon the merchants ; for, while 
condemning it, they recognized the danger to be 
incurred from divided pretensions, and proposed that 
a committee from their own body, with one from the 
mechanics, should canvass the taxpayers of the city, 
with a view of learning their opinion of the lists 
of delegates to be submitted to them. This scheme 
not proving satisfactory, a vote was taken at a meet- 



54 THE LIFE AND TIMES OF JOHN JAY. 

ing held at the City Hall, when the selection already 
made by the merchants was approved. The nomi- 
nees evidently thought, that, in a matter of such great 
moment, all interests should be united ; and the fol- 
lowing morning a majority of them appeared in 
a card declining to consider themselves properly 
chosen, as the late meeting had been summoned for 
a different purpose, and sufficient notice had not 
been given of its intended action. This seemed, 
for the time being, to throw every thing into con- 
fusion ; but it resulted in the merchants yielding their 
claim to the sole control of political affairs in the 
city. It was finally determined to open a poll for 
the taxpayers in each ward, under the supervision of 
a joint committee of the two bodies ; and the five 
delegates already named were then unanimously 
elected. The right of all classes to participate in 
affairs being admitted, entire harmony prevailed 
in the future ; and the action of New-York City 
soon became as democratic as that of Boston. 

Three members from other sections of the prov- 
ince subsequently united with those from the city, 
making in all eight representatives in the General 
Congress. Jay joined his father-in-law at Elizabeth- 
town, and proceeded with him to Philadelphia. The 
other city delegates left New York in a body, es- 
corted to the riverside by a large number of personal 
friends and sympathizers. 



THE CONGRESS OF 1774. 55 



VI. 

THE CONGRESS OF 1 774- 

A T the time appointed, the members of this not- 
-^^^ able assembly came together in Philadelphia 
from each of the thirteen colonies, except Georgia. 
England had furnished the example by her conven- 
tion of 1688, which meeting, without legal summons, 
decided upon the constitutional powers of the Govern- 
ment. Most of the delegates, on the present occa- 
sion, were personally strangers to each other. The 
reputation of some as ardent patriots, and able advo- 
cates of American rights, had extended beyond the 
bounds of their own provinces, and was not unknown 
to their fellow-members ; but the desires, purposes, 
and feelings of the greater number were to be ascer- 
tained and harmonized. John Adams, from the 
time of his appointment, had, with unwonted tact, 
been indefatigable in his endeavors to accomplish 
this among the more Northern ones, and, since his 
arrival, had sought to learn how far the Southern 
heart beat responsive to the patriotic pulsations 
nearer home. As he wrote, " Here is a diversity of 



56 THE LIFE AND TIMES OF JOHN JAY. 

religions, educations, manners, interests, such as it 
would seem impossible to unite." Few slaves were 
found north of Maryland, which rendered the sections 
different in their habits of life, manners, and general 
character. Would the representatives from the two 
cordially agree ? Upon their unity every thing 
depended. A sense of the injustice of England, 
however, pervaded both. 

The proposal of a congress had met with general 
approval, and its members were hospitably enter- 
tained by the citizens of Philadelphia. They con- 
vened for the transaction of business in an unadorned 
building tendered by the carpenters of the city. 
Out of compliment to the important Province of 
Virginia, the presidency was conferred on Peyton 
Randolph, the speaker of her House of Burgesses. 
He was a distinguished lawyer, had formerly been 
attorney-general, and possessed great popularity at 
home. Charles Thomson was appointed secretary. 
Happy in the present, and not dreaming of the 
immortality in store for his name, he was roaming 
along the street with his bride when summoned to 
this new duty, and was taken at once to the hall, 
and inducted into office. He says, that, as he walked 
up the aisle, deep thought and solemn anxiety were 
observable on every countenance. The members 
were without precedent to guide them. They were 
neither an executive government nor a legislature. 



THE CONGRESS OF 1774. 57 

Their sole power was one of advice, yet they exer- 
cised greater authority than was ever intrusted to 
any dehberative body. 

America has never witnessed a gathering of men 
of more marked abiUty, moral worth, dignity, and 
weight of character, nor one more fully alive to the 
grave duties imposed upon it, and the heavy responsi- 
bility attending their proper performance ; and never 
was so important a trust executed with more general 
satisfaction. With perhaps two exceptions, all of 
the delegates were native born. A large number 
were college graduates, and had been unhesitatingly 
accepted as leaders by the peojole. All conditions 
of society were represented ; wealth and labor sat side 
by side ; the plain man and the cultured took counsel 
together, for the questions at issue concerned all alike. 
Chatham told Franklin that it was the most honor- 
able assembly since the times of Greece and Rome. 
Massachusetts had sent her two Adamses ; Connecti- 
cut, her Sherman ; Maryland, her Chase and Paca ; 
Carolina, her Rutledges ; while Virginia, besides her 
Henry and Lee, gave that incomparable man, the 
soldier and statesman, destined soon to bear — 

" On shoulders immense, Atlantean, 
A burthen well-nigh not to be borne." 

Jay was at that time twenty-nine years of age. 
His eminent talents and exalted patriotism were 



58 THE LIFE AND TIMES OF JOHN JAY. 

recognized at home, and his name was somewhat 
known in Philadelphia. Though perhaps the young- 
est member of this dignified and able body, he 
assumed a full share of its labors, and proved him- 
self no unworthy representative of the imperial 
Province of New York. 

Owing to the solemnity of the occasion, profound 
silence reigned after its organization, to be broken 
by the impassioned declamation of Patrick Henry, 
who, depicting the wrongs of the colonies, scouted 
the idea of sectional distinctions, exclaiming, " I am 
not a Virginian, but an American," thus giving 
utterance to his country's aspiration for nationality. 
This revolutionary doctrine startled the more con- 
servative members. Jay thought that all govern- 
ment in America was not yet at an end, that the 
measure of arbitrary power was not full, and that it 
ought to run over before a new constitution should 
be formed. Following in the same line as Henry, 
Samuel Adams, a strong Congregationalist, arose, and 
moved that a clergyman of the Church of England 
might be requested to open the succeeding sessions 
with prayer. 

Our readers will remember an engraving entitled 
"The First Prayer in Congress." At the desk, 
arrayed in the vestments of his sacred office, is seen 
the Rev. Mr. Duch6 ; while grouped around are Pres- 
byterian and Quaker, Baptist and Episcopalian, — 



THE CONGRESS OF 1774- 59 

the difference in creed forgotten, — joining in suppli- 
cation to the Most High to enlighten them, and 
guide them to the restoration of harmony with the 
mother country. None of them, save, perhaps, that 
veritable tribune of the people, Samuel Adams, as yet 
looked forward to a separation ; but the conduct of 
the King and Ministry in less than two years precipi- 
tated the colonies into independence. 

For obvious reasons, Congress sat with closed 
doors ; and, unfortunately, no record was preserved 
of measures which failed of its approval, nor of 
remarks made from time to time. Hence, for a 
knowledge of its proceedings, we are compelled to 
rely upon the papers that it spread before the world, 
aided by the scanty reminiscences of some of the 
more important actors on the scene. It is known, 
however, that a spirit of concord reigned over its 
counsels, that unity prevailed ; and all prejudices, if 
entertained, were, for the time, made to give place 
to questions concerning the general welfare. 

No limit had been fixed to the number of delegates 
from each colony, and the larger ones claimed a pro- 
portionate weight ; but, as no trustworthy estimate 
of their wealth and population could be obtained, it 
was agreed that all should possess an equal vote. 
Here, perhaps, we may detect the germ of what is 
more fully developed in the present Constitution. 
The Congress itself professed to voice the sentiment 



6o THE LIFE AND TIMES OF JOHN J A Y. 

of the people ; and having admitted the equal right 
of the colonies, as such, we recognize in it the future 
Senate and House of Representatives. Virginia had 
instructed her delegates not to go beyond the then 
existing reign in stating their grievances ; and, as 
this policy met the approval of those from Maryland 
and North Carolina, all confined themselves to prac- 
tical issues, and, unlike the French National Assem- 
bly, forbore to enter upon the wide and boundless 
field of theoretical and abstract rights. 

After an interchange of vicAvs, they resolved upon 
the course proper to be pursued. It was deemed 
advisable first to demonstrate to the world the abso- 
lute justice of their cause, thereby uniting America, 
and conciliating the friends of constitutional liberty 
in England ; in the second place, to endeavor to 
obtain relief by carrying an humble petition to the 
foot of the throne. They next determined to appeal 
to the interest of their fellow-subjects at home, and, 
in order to render this more effective, to suspend all 
commercial intercourse with them until the cause of 
the troubles should have been removed. In further- 
ance of the first measure, two papers were agreed 
upon. In the one, the people represented in Con- 
gress were exhorted to bear their present trials with 
firmness, and hold themselves in readiness for future 
contingencies. The other was an address to the 
unrepresented colonists, asking their concurrence, 
and solicitins: their assistance. 



THE CONGRESS OF 1774- 6 1 

These various subjects were placed in charge of 
appropriate committees, which in every case included 
some of the ablest delegates in attendance. The 
one to whom the first was referred, prepared a sum- 
mary of the rights of the people of America, and 
specified the different enactments infringing them. 
It was understood to be the production of several 
hands, and eloquently, logically, and unanswerably 
covered the entire questions at issue. The rights 
asserted were those which had before been enjoyed 
unquestioned, — life, liberty, the possession of prop- 
erty, and the privilege of assembling for the discussion 
of public affairs ; in addition to these the concessions 
which had been made by the charters, together with 
the benefit of the common law of England, and such 
statutes as were in force at the time the colonies 
were planted. Then followed an enumeration of the 
various instances in which these rights had been 
violated by Parliament, and a demand for the repeal 
of its Acts as essential to the restoration of harmony 
between the countries. By the publication of such 
a document. Congress laid aside its provincial char- 
acter, and, as the representative of the whole country, 
assumed a national attitude before the world. 

The proceeding next in importance was an address 
to the people of Great Britain, and the task of pre- 
paring it was intrusted to Jay. Impressed with the 
seriousness of the undertaking, and realizing that it 



62 THE LIFE AND TIMES OF JOHN JAY. 

required the utmost exertion of his youthful powers, 
he left his lodgings, barred himself in a room, and 
there composed that paper which Jefferson, without 
knowing the author, declared came from the first 
pen in America, and which was regarded by Webster 
as "standing at the head of the incomparable pro- 
ductions of the first Congress." "It would be diffi- 
cult," says a profound critic, " to select from them one 
better adapted by the choice and illustration of its 
topics to the purpose for which it was designed, or 
one more remarkable for its fervid and manly elo- 
quence." In terse and glowing language, it called 
upon the English people to witness their loyalty and 
attachment, and their willingness to contribute to 
the common defence of the empire ; claimed that 
none of the rights of freemen had been forfeited by 
emigration ; pointed out the wrongs sustained ; the 
violent invasions of the cherished principles of con- 
stitutional government ; and invoked them, as they 
valued their own liberties, to refrain from trespassing 
upon those of their fellow-subjects.' It at once 
established the reputation of the writer, and gave 
him an ascendency which he never afterwards 
lost. 

The petition to the king was drawn by Dickinson, 
who, after reviewing the recent enactments of Parlia- 
ment, declared that their bare recital justified his 

* See Appendix A. 



THE COXGRESS OF 1774.. ^i 

subjects in flying to the foot of the throne of the 
sovereign, and asking his interposition in their behalf. 

A protest was also made against having a standing 
army quartered in America, the closing of Boston 
Harbor, and the bill legalizing the Catholic religion 
in the Province of Canada. Inspired by a spirit of 
freedom, the members further resolved not to be 
concerned in the slave-trade after the following 
December, nor to hire vessels, or sell supplies, for 
that purpose. Commercial non-intercourse was to 
be established until England should have withdrawn 
her illegal pretensions, and the appointment of com- 
mittees at the different ports was recommended for 
its enforcement. 

Public interest throughout the country had been 
quickened by the meeting of Congress ; and the 
result of its deliberations was looked for with impa- 
tience by both friend and adversary, — the former 
with apprehension lest discord should arise, or im- 
proper measures be recommended; the latter fer- 
vently hoping that either or both might prove the 
case, — the timid fearing that its expression of feel- 
ing would be pitched too high ; the ardent dreading 
that hesitating counsels might prevail. When, how- 
ever, at the close, its proceedings were made known 
to an expectant world, all were surprised at the sound 
judgment, dignity, and moderation, which, in general, 
marked its action. It had unknowingly performed a 



64 THE LIFE AND TIMES OF JOHN JAY. 

great work. The papers emanating from it were 
highly commended for their ability and research, 
eliciting marked consideration from distinguished 
persons at home and abroad. Their solemnity and 
firmness of tone, combined with an evident desire to 
heal the breach, won for Congress the support and 
confidence of the thoughtful and discreet. The' 
Whigs gave them a cordial approval, and the Tories 
could only find fault with the non-importation policy 
recommended. To form a correct estimate of them, 
they must be contrasted with the record made, not 
many years later, by the French Assembly and Con- 
vention. Chatham wrote, " I have not words to 
express my satisfaction that the Congress has con- 
ducted this most arduous and delicate business with 
such manly wisdom and resolution." 

The documents issued were well calculated to 
arrest attention, and, while uniting the colonies in 
opposition to ministerial pretensions, were, at the 
same time, not unsuccessful in influencing public 
opinion in England. The ministry had heretofore 
been sustained by all classes in that country. Now, 
when the arbitrary and unconstitutional nature of its 
measures was demonstrated ; the king assured, in im- 
pressive language, that resistance would follow their 
enforcement; and his justice invoked, — the public 
might well question the wisdom of their past course, 
and hesitate as to its continuance. The papers, 



THE CONGRESS OF 1774. 6$ 

when laid before Parliament, furnished Chatham 
with an occasion for expressing this feeling, which, 
spreading abroad, so strengthened the Whigs, that 
the King and Ministry had, in a few years, to suc- 
cumb to the general conviction, that the principles 
for which the Americans were contending, were those 
which had a century before deprived the Stuarts of 
their heritage, and placed the House of Hanover 
upon the English throne. 

Swift had, in the previous century, recommended 
non-intercourse to Ireland; but, judged by subse- 
quent developments, the expediency of America's 
adopting it may well be doubted. Its efficiency in a 
former instance was unquestioned, and she antici- 
pated a period of commercial restriction rather than 
a long and disastrous war. Still, the condition of 
affairs was changed. Trade between the countries 
was already languishing, and its entire suspension 
was particularly injurious to the interests of their 
supporters abroad. When hostilities began the fol- 
lowing year, the colonies were without the necessary 
supplies, which might have been secured for the 
emergency had trade continued unobstructed. 

Parliament had enacted the Quebec bill as an 
inimical measure, yet its condemnation was an un- 
worthy appeal to popular prejudice by those striving 
for the preservation of their own freedom in State 
and Church. They must later have been made pain- 



66 THE LIFE AND TIMES OF JOHN JAY. 

fully aware of the impolicy of their course, when, in 
a few months, the Carrolls, with Chase and Franklin, 
were sent to Canada for the purpose of encouraging 
adherents, and allaying the hard feeling entertained 
by the Catholics toward their Protestant brethren 
across the border. 

After remaining in session fifty-two days, Congress 
finally adjourned. Before doing so, they, with saga- 
cious foresight, provided for another meeting the 
following May. Such were some of the proceedings 
of this august body of patriots, who now sought 
their homes to diffuse among their neighbors the 
same fervid and fearless spirit by which they them- 
selves were animated. The sword yet slumbered in 
the scabbard ! 



THE CONGRESS OF 1775. 67 



VII. 

THE CONGRESS OF 1 775- 

WHEN Jay first went to Philadelphia, he was 
scarcely known outside of his own province, 
and had little weight therein. While surpassing its 
other delegates in every thing but years, it seemed 
then unlikely that he would exercise any marked 
influence over the proceedings of Congress. The 
patriotism, ability, tact, and mature wisdom displayed 
by him in that assembly, had, however, won the con- 
fidence and respect of his fellow-members ; and he 
retired from it with a wide-spread reputation, and was 
recognized as a destined leader of the people of New 
York in their further contest with arbitrary power. 

The statesmanlike papers emanating from Con- 
gress were expected to operate silently upon public 
opinion; but, in order to render non-importation 
effective, the most energetic and efficient action was 
necessary on the part of the several committees 
intrusted with its enforcement. Whatever may have 
been Jay's views as to this policy, he resolved to 
carry it out to the fullest extent, and in accordance 



68 THE LIFE AND TIMES OF JOHN J A Y. 

therewith to hold up to public odium all persons 
guilty of its violation. 

On his return home, he entered upon this unpleas- 
ant task, which was made the more disagreeable by 
the fact that his committee of fifty-one had been 
appointed for a specific and very different purpose. 
The difficulty soon became apparent. The city was 
already the seat of considerable commerce, and many 
of its leading merchants were inimical to a measure 
which would dry up a stream of wealth that had 
heretofore flowed in upon them. As late as the pre- 
vious June, they had expressed their disapproval of 
such proceedings, and were supported in their oppo- 
sition by the governor of the Province, together with 
a large number of its landed proprietors. The pres- 
ence of a small military and naval force further 
strengthened their determination to disregard the 
congressional requirements. 

The committee, finding themselves inadequate to 
the new duties imposed upon them, called to their 
assistance the citizens generally, who, at their sug- 
gestion, replaced them in May by another body con- 
sisting of one hundred members. Jay was of the 
number, and, in conjunction with Duane, is supposed 
to have prepared its articles of association. The 
powers conferred upon it were undefined, and prac- 
tically embraced all subjects concerning the public 
welfare, but were most justly and gently exercised. 



THE CONGRESS OF 1775. 69 

The old committee had carried on an extensive 
correspondence with patriotic organizations through- 
out the colonies, and this duty now devolved upon 
its successor. Representing, as the latter did, every 
class of the community, it soon evinced, by its energy, 
the new spirit infused into it. All were called upon 
to arm, and perfect themselves in military discipline. 
Patrols were established, supplies for the British 
troops at Boston inhibited, vessels watched, to pre- 
vent their discharging goods, the reshipment of those 
improperly landed required, and enemies of the cause 
held up to public indignation. The people of the 
city appeared to have assumed sovereignty, and dele- 
gated all authority, except that of taxation, to this 
irresponsible "committee of observation." Its vig- 
orous proceedings, even if they did not crush out 
opposition, prevented any open expression of dissent 
on the part of the Loyalists, thereby strengthening 
the popular cause in other sections of the Province, 
A letter, prepared by Jay, was addressed to the 
Mayor and Livery of London, recapitulating Ameri- 
can grievances, and asserting that all the horrors of 
civil war would never compel the country to submit 
to parliamentary taxation. 

The Whig merchants of the city were roused, and, 
emulating their brethren of Boston, boarded a vessel 
just from England, and emptied into the river eigh- 
teen chests of tea which they found on board. 



70 THE LIFE AND TIMES OF JOHN JAY. 

The time was now at hand when Congress was 
a;^ain to meet. The (Jrovernment abroad dreaded 
any a])i)roach towards a union of the colonies; and 
the different executives had been instructed "to pre- 
vent the selection of delegates to a new congress, 
and to exhort all persons to absent themselves, as it 
canncjt but be highly displeasing to the king." ' 

Their efforts, however, failed of effect. The for- 
mer mode of electing delegates in New-York City 
was irregular, and there had been but a partial 
representation at Philadelphia from other parts of 
the Province. The committee of one hundred, there- 
fore, as the recognized Whig authority, recommended 
that (l(.'|)iili(js sliould be chosen from the different 
counties, to assemble in April for that especial pur- 
pose. The friends of the ministry, on this occasion, 
rallied to defeat the movement in the city. They 
afterwards arfiiiiu^d that the election was marked by 
riot and disorder. Judge Jones says that the Loyal- 
ists, numbering three-foiu'ths of the legal voters, 
marched in a body to the jjolls; but their adver- 
saries, having collccled boys, unemployed sailors, and 
negroes, thrcaliMuul all wlio o])pose(l them. The 

* Dunmore in Virj;'"''' w.is indiscreet cnoii^'h to issue .1 proclamation, say- 
\\\\^y" I am commaiiilcil liy Ihe kiui^,M\i\ I do accordiiiHly require all magis- 
trates and other officers to use their utmost endeavor to jirevent any such 
appointment of deputies, and to exhort all persons whatever witliin this 
government to desist front such an unjustiliahlc ])ru(;eeding su highly 
displeasing to his majesty." 



CONGRESS OF 1775. 7 1 

majority of the ballots cast was largely in favor of 
sending the late members of Congress to represent 
the city at Albany. The committee itself were not 
satisfied with the manner of conducting the election, 
and at Jay's suggestion set it aside, and held one 
confined to the freemen and freeholders, when the 
previous selection was unanimously ratified. The 
convention came together on April 20, and remained 
in session four days. It testified its approbation of 
the conduct of the former delegates to l-'hiladelphia 
by re-appointing all except Lowe, who, at his own 
request, was excused from further service. With 
them were now associated Clinton, Lewis Morris, 
Schuyler, R. R, Livingston, and Francis Lcwi.s. 

The Whigs in the Assembly had failed in an attempt 
to pass a vote approving of the proceedings of the 
recent Congress, and were equally unsuccessful in 
having delegates sent to the one to be held the follow- 
ing May. The landed property in the other colonics 
was generally diffused, and formed a stable founda- 
on on which to build liberal in.stitutions ; while in 
>ew York it was centred in the hands of a few who 
were thereby allied in feeling to the aristocracy of 
the mother country ; and the Assembly, by their in- 
fluence, became the supporter of her pretensions. 
Resolutions passed by it, approving the course of 
the ministers, gave great satisfaction abroad ; while 
at home they were regarded as a desertion of the 



72 THE LIFE AND TIMES OF JOHN JAY. 

cause of America. The authorities became alarmed 
at the situation of affairs, and ordered Tryon to 
return, and make any reasonable concession to the 
public demand. Had that governor been present, 
his ability, energy, and popularity would have gone 
far to sustain the king's supremacy. He was at the 
time in England on leave of absence ;' and the ex- 
ecutive duties of the Province had, in consequence, 
devolved upon the aged Colden, a loyal and hon- 
orable man, but wholly unable to counteract the 
aggressive and vigorous measures of the patriot lead- 
ers. He could offer little more than a passive resist- 
ance, and, in despair, wrote to Dartmouth early 
in May, "The people have entirely prostrated the 
power of government." With the news of independ- 
ence, the inhabitants of the city, breaking through all 
restraint, seized the military stores, and, dragging 
the king's statue from its pedestal at Bowling Green, 
melted it into bullets with which to kill his troops. 

In view of the disturbed condition of affairs, Jay's 
committee prepared articles of association, pledging 
the signers, under all ties of religion, honor, and love 
of country, to repel every attempt by Parliament to 
enforce taxation. As it had become evident that the 
Assembly was not in accord with the prevailing sen- 
timent, they also took the bold resolution of calling 
upon all voters in the Province to elect deputies to a 
provincial congress. This having been carried into 



CONGRESS OF 1775- 73 

effect, that body was installed in New-York City the 
latter part of May. As the chosen representatives 
of the people, it assumed the entire jurisdiction here- 
tofore exercised by the governor and legislature. 
The last regular Assembly, under the authority of 
the Crown, had been held early in April, when sep- 
arate petitions were sent to the King, Lords, and 
Commons. Soon after this, Colden took up his resi- 
dence on board a ship belonging to his majesty, where 
from time to time the loyal members met to issue 
impotent enactments against popular sovereignty. 

When Congress next met at Philadelphia, in what 
is now known as the State House, its more advanced 
members seemed imbued with the same determined 
spirit that marked the opening of the Long Parlia- 
ment. The sound of musketry on Lexington Green 
had not yet died away, and their patriotic pulsation 
appeared to have been quickened by its reverbera- 
tion. They felt that peaceful measures to check the 
current of tyrannical proceedings had been exhausted, 
and that nothing remained but to throw off allegi- 
ance, and submit the question of independence to 
the arbitrament of the sword. Hostile forces con- 
fronted each other at Boston. The king had 
received their late petition with contemptuous indif- 
ference. Their courage had been ridiculed — an 
officer of rank, who had served in America, having 
expressed the opinion in the House, that with five 



74 THE LIFE AND TIMES OF JOHN JAY. 

regiments he could march through the entire country. 
This arrogant speech had met with applause at a 
time when Chatham's conciliatory proposals were 
rejected with scorn. A cordial reconciliation with 
England on terms honorable to their country seemed 
to them to have become impossible. 

While all of the members were actuated by the 
same lofty patriotism, and evinced a firm determina- 
tion to maintain their liberties by force of arms, if 
necessary, the larger number hesitated to take the 
decisive step of independence, and restrained their 
more impetuous brethren. Some, inspired by their 
hopes, were still willing to confide in the justice and 
magnanimity of the authorities : others, like Dickin- 
son, were " afraid of breaking the line of opposition 
by advancing too hastily." They realized, that, in 
such a movement, all the traditions and social influ- 
ences of Europe would be against them, and they 
knew that many of the colonies were not yet ready 
for a separation. The older and the more circum- 
pect members perhaps felt that it was necessary to 
demonstrate to the people that no means had been 
left untried to settle the dispute amicably, and they 
may also have thought that the course of the British 
Government would eventually render a division of 
the countries inevitable, and thus reconcile all to the 
idea of independence. Washington and Jay might 
for some time lon^rer be classed among: these. 



CONGRESS OF 1775. 75 

Few changes had been made in the body, the 
most notable being Pennsylvania's appointment of 
Franklin upon his arrival from Europe. The same 
president and secretary were elected as before. 
Hancock, the speaker of the Massachusetts Provin- 
cial Congress, made his appearance as a delegate for 
the first time, and, when Randolph left to preside 
over the Virginia House of Burgesses, was chosen 
as his successor. With a modesty not unnatural, 
he hesitated to occupy the seat, when jovial Ben 
Harrison, who was standing near, seized the new 
officer in his athletic arms, and, placing him in 
the chair, exclaimed, "We will show Mother Brit- 
ain how little we care for her, by making a person 
president whom she has excluded from pardon." 
Randolph's seat in the delegation was filled in 
June by Jefferson, then a tall, raw-boned youth, 
with sandy hair and gray eyes, a few months older 
than Jay, Though unable to address an assem- 
bly, he brought with him a well-established repu- 
tation as a vigorous and polished writer ; and his 
fame was destined ere long to marvellously in- 
crease. 

The divergence in views above referred to, caused 
in the beginning some indecision. Hostilities had 
already begun, and the army under Gage was be- 
leaguered in Boston. A formidable British arma- 
ment was expected at New York ; and the provincial 



'je THE LIFE AND TIMES OF JOHN JAY. 

authorities, having sought information as to the 
course to be pursued upon its arrival, were recom- 
mended not to permit the raising of any intrench- 
ments, and to repel force by force. The General 
Congress was not, however, prepared to advise that 
the landing of the enemy should be resisted, or an 
attack made upon them, even though their hostile 
intention might be manifest. On the i8th of May, 
three days after this halting reply, the taking of 
Ticonderoga and Crown Point with their stores was 
reported. Here was a clear case of aggressive war- 
fare on the part of the Americans. The king's forts 
were captured, munitions seized, and his troops made 
prisoners. This was high treason on the part of 
Allen, unless the responsibility were assumed by 
Congress, which was reluctant to sanction the act, 
but was not willing to disavow it by surrendering the 
property, and releasing the prisoners. Events, how- 
ever, rapidly brought a decision. Even before 
Bunker Hill had roused the country, hesitation was 
no longer displayed in making ready for the final 
arbitrament. A week after the news from Ticon- 
deroga was received, it was unanimously resolved, 
that as Gage, the British commander, had com- 
menced hostilities, the colonies should be put in a 
state of defence, and the New-England troops 
arrayed before Boston adopted as the Continental 
Army. Privateering against English commerce was 



CONGRESS OF 1775. 77 

authorized, the American ports thrown open to the 
world, and the last vestige of dependence effaced. 

On June 15 the fortunate appointment of a com- 
mander-in-chief was made. Washington, as we have 
seen, was a delegate to the first Congress ; and 
Patrick Henry declared, that, while others surpassed 
him in eloquence, he was unquestionably the great- 
est man on the floor. He had been re-elected by 
Virginia; and, in deference to his experience, the 
task was assigned him of preparing regulations for 
the government of the army, and of presiding over 
all committees on military affairs. No fact more 
strikingly illustrates the sagacity of his associates 
than his unanimous election by ballot as the leader 
of their forces in the approaching conflict. Only by 
"the Conway Cabal" and its sympathizers was its 
wisdom ever questioned ; and to his sound judgment, 
unaffected modesty, dignity, and firmness of charac- 
ter, America was indebted for the harmony which 
prevailed in all branches of service during the Revo- 
lution, and the entire subordination of the military 
to the civil authority. It was mainly upon his sug- 
gestion that many of the general officers were chosen 
to aid in the arduous work to be performed. He 
thenceforth moved before his countrymen a cloud by 
day, and a pillar of fire by night. The number of 
important committees on which Jay was appointed 
indicates the reputation which he had acquired the 



yS THE LIFE AND TIMES OF JOHN JAV. 

year before, and this was still further increased by 
the able documents emanating from his pen. The 
decisions of a committee only are known. Its labors 
are unseen, and of these he bore more than his 
proportionate share. 

A closer union of the colonies had always been a 
favorite idea with the sagacious Franklin, who, ac- 
cordingly, laid before Congress a plan of confedera- 
tion. Such a movement was, however, too advanced 
for the majority of the members, who looked upon it 
as simply proposing independence without mention- 
ing the word. 

A second petition to the king was signed individu- 
ally. When it was suggested early in the session, 
it was objected that the manner in which the first 
had been received forbade another approach to the 
throne : but Jay insisted, that, if the people were 
called upon to take up arms, it must be shown them 
that no proper effort had been spared to avert the 
necessity ; and he was accustomed in after-life to 
speak of the auspicious influence of the second 
appeal, attributing this to the fact that its rejection 
left no alternative but resistance. The measure was 
conceded most unwillingly, but the members were 
still more adverse to any separate action of the kind 
on the part of the colonies. Learning that the 
Assembly of New Jersey, inspired by its Tory gov- 
ernor, contemplated petitioning his majesty, Jay, 



CONGRESS OF 1775. 79 

Wythe, and Dickinson were deputed to visit that 
body, and urge the impropriety of the proceeding. 
The first two addressed it briefly, Wythe saying that 
Congress had already done so, and that it was now 
necessary to satisfy England that the Americans 
would fight. Jay declared that the country had 
nothing to expect from her justice or mercy; that 
petitions were no longer the mode, but unanimity 
and vigor the essential means, of procuring redress. 
Governor Franklin's purpose of separating New Jersey 
from the other colonies was thus defeated, and the 
result was a prorogation of the Assembly the follow- 
ing day. 

Amid active preparation for hostilities, Congress 
was not unmindful of friends abroad who had shown 
sympathy with the cause. It issued an address to 
the people of Great Britain, and another to the Cor- 
poration of London. In the former, any desire for 
independence was disclaimed, and a willingness ex- 
pressed to be bound by all Acts relating to navigation 
passed prior to the close of the Seven Years' War ; 
but at the same time a determination was avowed to 
resist all further encroachments on colonial rights. 
In the second address, the city was thanked for the 
interest it had before manifested, and a continuance 
of its good offices solicited. Nor were Jamaica and 
Ireland overlooked. The latter had seized the oppor- 
tunity to extort concessions from the Imperial Gov- 



80 THE LIFE AND TIMES OF JOHN JAY. 

ernment, and her threatening attitude had detained 
troops which would otherwise have reached America 
at a critical moment. In addressing her people, Jay 
said, "Blessed with an indissoluble union, with a 
variety of internal resources, with a firm reliance on 
the justice of the Supreme Disposer of all human 
events, we have no doubt of rising superior to all the 
machinations of evil and abandoned ministers. . . . 
Accept our most grateful acknowledgments for the 
friendly disposition you have always shown toward 
us. . . . We should be wanting to ourselves, we 
should be perfidious to posterity, we should be un- 
worthy of that ancestry from which we claim our 
descent, should we submit with folded arms to mili- 
tary butchery and depredation to gratify the lordly 
ambition, or sate the avarice, of a British minister. 
For the defence of our persons and properties we 
have taken up arms. When that violence shall be 
removed, and hostilities cease on the part of the 
aggressors, they shall cease on our part also." 

Every arrangement having been made for the 
coming struggle. Congress published to the world a 
declaration of the causes and necessity of taking up 
arms. Dickinson and Jay were both on the commit- 
tee which prepared this admirable document, though 
it is understood to be from the pen of the former. 
In it he said, that the arms which they had been com- 
pelled by their enemies to assume, they would, in 



CONGRESS OF 1775. 



defiance of every hazard, employ for the preservation 
of their liberties, being with one mind resolved to 
die freemen rather than live slaves. He declared 
further, " We have counted the cost of this contest, 
and find nothing so dreadful as voluntary slavery. 
Our cause is just, our union perfect, our resources 
great, and foreign assistance is undoubtedly attain- 
able." 

Having perfected all measures deemed requisite 
for the occasion. Congress appointed a day of fasting 
and prayer, to invoke the divine blessing upon their 
suffering country. They had been in session for 
eighty days, occupied with weighty duties, when, 
owing to the heat, and their inability to proceed 
without awaiting further developments, they invested 
a committee with essential powers, and adjourned, to 
meet again in September. 



82 THE LIFE AND TIMES OF JOHN JAY. 



VIII. 

INDEPENDENCE. 

WHEN Congress assembled at the appointed 
time, the effect of its late action upon the 
King, Ministry, and Parliament had become known. 
No conciliatory steps had been taken by any of them, 
and their proceedings all indicated a settled deter- 
mination to reduce the colonies to unconditional 
submission by the iron hand of military power. The 
petition to the king was a last effort to heal the 
breach ; and on its failure, Jay felt that nothing more 
could be hoped for from the authorities abroad, and 
was thenceforward in full accord with those advocat- 
ing an immediate separation. 

Troops had been hired in Germany ; and an impos- 
ing land and naval force, under the command of the 
brothers Howe, was being concentrated for the sub- 
jection of the associated colonies. Every prepara- 
tion within the scope of the limited powers of 
Congress had already been made to meet the emer- 
gency, and its further duties were, for the time 
being, merely executive. It called upon the prov- 



INDEPENDENCE. 83 

inces open to invasion for additional troops, ordered 
the erection of fortifications at exposed points, rec- 
ommended the securing and removal to the interior 
of all persons actively inimical to the American cause, 
and, thus occupied with details properly belonging 
to subordinate civil officers, could only await the 
threatened event with calmness and resolution. 

When Dickinson declared that foreign assistance 
was undoubtedly obtainable, he little dreamed that 
his prediction would so soon be fulfilled. In Novem- 
ber he was appointed on a secret committee, with 
Franklin, Jay, and two others, to correspond with 
friends of the cause abroad, Arthur Lee was then 
in London ; and Franklin at once wrote to him, as 
well as to Dumas at the Hague, to sound the minis- 
ters of France and other sympathizing powers, and 
learn what encouragement and aid might be expected 
in the event of a separation from the mother country. 
His letters had hardly been despatched, when a 
meeting was called at night, to which the members 
proceeded by different routes, in order to escape 
observation. Sieur Bonvouloir, who had been em- 
ployed by the French ambassador at London, made 
his appearance as a well-disposed individual having 
some useful acquaintances at Paris. He did not ex- 
hibit any papers, and was very guarded in his expres- 
sions, but intimated that France would shut her eyes 
to the purchase and shipment of warlike stores, 



84 THE LIFE AND TIMES OF JOHN JAY. 

said he could select good agents for them in that 
country, and warned them against sending a pleni- 
potentiary, as whatever happened in Paris was imme- 
diately known in London. He seemed impressed 
with the prudence of the committee, and wrote to 
his employer, " The sound heads who compose the 
select council are acting discreetly." Such were the 
first overtures which France and America almost 
simultaneously made to each other. 

We are apt to conceive of the Continental Con- 
gress as resembling in constitution an American 
Congress of the present day, endowed with full legis- 
lative authority, having its duties plainly set forth, 
and its powers carefully defined. Such a conception 
is entirely fallacious. It could only recommend, not 
legislate. It was simply a grand committee, organ- 
ized for mutual support, and protection against the 
enemy, and its influence was dependent upon the 
wisdom of its proceedings. Keeping this knowledge 
steadily before them, the members moved cautiously, 
but still forward, being always well abreast with 
public sentiment, if not somewhat in advance of it. 

The progress of the quarrel had stimulated the 
people to assume an attitude towards the supreme 
government which could be justified only by a 
further movement in the same direction. The king's 
authority in many places had been thrown off ; his 
officials superseded or punished for enforcing the 



INDEPENDENCE. 85 

laws of Parliament, and open warfare waged against 
his armies : yet allegiance was held to be due a sover- 
eign thus contemned, and justice was professedly 
administered in his name. The bonds which held 
society together were loosened at every point, and 
it was sustained only by general forbearance. The 
Anglo-Saxon reverence for the forms of law was too 
deeply embedded in the nature of the people for this 
condition of things to last. 

With the beginning of the new year, the advisa- 
bility of a formal separation from England began to 
be discussed in all circles. American trade had 
been thrown open to every nation ; and, undeterred 
by the threatened invasion, public opinion rapidly 
tended toward independence. As yet, in some sec- 
tions, its approach aroused grave apprehension ; and 
Congress therefore proceeded with caution to a con- 
summation which the majority at last realized to be 
inevitable. In the previous November, New Jersey 
had expressed her " detestation of such opinions," 
the "extreme abhorrence of such sentiments," and 
directed her delegates "to utterly reject any propo- 
sition of the kind." Maryland, in the January follow- 
ing, had instructed hers to entertain no proposal 
looking to a separation ; while the important Prov- 
ince of Pennsylvania was equally opposed to such a 
movement. 

On May 15, on the motion of John Adams, a reso- 



86 THE LIFE AND TIMES OF JOHN JAY. 

lution was passed, recommending those colonies, 
"which have not already established suitable govern- 
ments, to adopt such as will best conduce to the 
safety of their constituents and America in general." 
Its passage was regarded by the mover as virtual in- 
dependence. In pursuance of this advice, the king's 
authority, where still existing, was stricken down, and 
the sovereign power thenceforth lodged with the 
inhabitants. One step further was necessary, and 
that speedily followed. Only nine days were per- 
mitted to elapse, before a committee was appointed, 
"to take the subject of independence into considera- 
tion." Mr. Lee's resolution, declaring the colonies 
free and independent States, was favorably reported, 
a day named for its discussion, and Jefferson, Frank- 
lin, Adams, Livingston, and Sherman were ordered 
to prepare a declaration suitable for the occasion. 
On June lo the debate opened, and was conducted 
with animated feeling on both sides. The opposition 
was based almost exclusively upon the inexpediency 
of the measure at that juncture. Pennsylvania had 
seven delegates present, most of whom felt bound to 
regard the instructions heretofore given them, as did 
those from Maryland and New Jersey — the former 
being equally divided : the representatives from 
New York had received no directions upon the sub- 
ject. Unanimity was essential in a matter of such 
great weight ; and the majority was therefore con- 



INDEPENDENCE. 8/ 

Strained to prolong the discussion, and await the 
flood-tide of independence rolling in upon the 
country. 

On June 21 New Jersey authorized her delegates, 
"if deemed necessary and expedient, to concur in the 
measure." Four days afterward, Pennsylvania took 
similar action, and was soon followed by Maryland. 
The New-York delegates, though unable to vote, 
assumed the responsibility of sanctioning it ; while 
those from Delaware — before divided — gave it their 
approval. The ever memorable day in July wit- 
nessed all of the thirteen colonies, through chosen 
representatives, yielding their assent to that act 
which forever marks an epoch in the world's history, 
and has quickened the people of all nations to higher 
aspirations in the cause of freedom, and whose 
influence will doubtless be traced for many genera- 
tions to come. The declaration was ordered to be 
engrossed on parchment ; and on Aug. 2, having 
been laid before Congress, it was signed by the 
members generally. Some who had voted for it 
were absent on public business, while several affixed 
their names who were not present at the time of its 
adoption. The Howes, ere this, were at Staten 
Island with their armament ; and Carleton, having 
expelled the Americans from Canada, was on Lake 
Champlain ; yet Ellery, who placed himself by the 
side of the secretary, and eyed each delegate as he 



8S THE LIFE AND TIMES OF JOHN JAY. 

approached, declares that he saw nothing but daunt- 
less resolution on every countenance. 

Turgot had supposed that the colonies would, like 
fruit when fully ripe, drop naturally from the parent 
stem ; but the suspicions of the home authorities, and 
their contracted, illegal, and ungenerous treatment 
of their dependencies across the Atlantic, resulted in 
a premature separation of the countries. At the 
close of the Seven Years' War, England, intoxicated 
with military glory, had become haughty, supercil- 
ious, and domineering, forgetting that a portion of 
the same blood shed by the Ironsides at Marston 
and Naseby flowed in the veins of her progeny in 
the New World. Men in Britain had ceased to bend 
the knee to rank, but the power of the people had 
not yet become greater than that of the aristocracy. 
More than a century of training in local self-govern- 
ment had fitted the American people to assume- 
entire control of their affairs. 

When we revert to the condition of the colonies, 
weak, defenceless, without allies, and threatened by 
an overwhelming naval and military force, we are 
struck by their moral heroism, grandeur, and magna- 
nimity in throwing down the gauntlet before a potent 
nation which had recently humbled the House of 
Bourbon. 

A wrong impression is conveyed to the popular 
mind by speaking of America's assertion of inde- 



INDEPENDENCE. 89 

pendence as a revolution. Burke pronounced it one 
prevented, and there was little about it partaking 
of a revolutionary character. While the French 
leaders sought to destroy all connection between 
their nation's present and its past, the Fathers of 
America, more wise, strove to rupture as few ties as 
possible. The principles of the common law were 
not impaired, and even its forms were held sacred. 
There was no subversion of the established order. 
The administration of public business in the new 
States retained its old methods, and justice was dis- 
pensed in the same manner as before. This so- 
called revolution, like that of England in 1688, was 
merely a change of dynasty to secure the liberty of 
the subject. They renounced their allegiance to 
the sovereign, not because he was a king, nor from 
a desire to improve the existing institutions, but 
because his measures tended to break down the safe- 
guards which protected their inherent rights, privi- 
leges, and immunities. The object was to preserve 
these, and the legal system and framework of society 
remained essentially the same after it had been ac- 
complished. Like the slender cord which connects 
the infant with its parent, the bond of allegiance 
once severed, each people has grown the stronger 
and more robust in an independent political sphere. 
It is also a mistake to think that the cause of 
independence was unanimously sustained in the 



90 THE LIFE AND TIMES OF JOHN JAY. 

colonies. In all of them, there was a large and influ- 
ential minority opposed to a separation from the 
mother country. Many, who in the beginning were 
hostile to the measures of the ministry, shrunk back, 
and withdrew their support from Congress, when it 
became manifest that military force was requisite to 
maintain colonial rights. The rule of the home gov- 
ernment had not been oppressive ; it touched them 
at few points : and the question at issue was, in its 
earlier stages, as much one of abstract principle as 
the removal of a practical grievance. The revolu- 
tion was started by the people in Massachusetts, and 
by the upper classes in Virginia. 

The settlements made in America were confined 
to a narrow strip of territory, which, like a ribbon, 
bordered the Atlantic coast. Widely separated by 
almost impenetrable forests and rapid streams, and 
connected by few roads, their occupants held little 
intercourse, being as diversified in character as the 
size of the provinces, or the nationalities from which 
they sprung. Franklin at one time supposed that 
the jealousy existing among them would prevent 
their ever uniting. From England two classes had 
emigrated ; the one settling in the East, where the 
farms were of limited extent, and poor, affording but 
a modest living to a frugal family, even when each 
member contributed his proportionate share of labor. 
Contending against a rugged climate, the inhabitants 



INDEPENDENCE. 9 1 

grew hardy and self-reliant, asking no assistance from 
their neighbors except in cases of great emergency. 

In Virginia, on the other hand, the land was held 
in large tracts, frequently entailed, and was worked 
by slaves, the proprietors living apart in a patriar- 
chal manner. Regarding their fair complexion as a 
badge of freedom, they were aristocratic, high- 
spirited, and given to a generous hospitality. The 
same love of independence was fostered by isolation 
in the one case as by proximity in the other. All 
the settlers looked upon England with affection, and 
were bound to her by family and business ties, more 
numerous and intimate than those connecting them 
with each other. It was hardly to be expected that 
they would cast aside their religious, social, and colo- 
nial prejudices, and combine to overthrow by vio- 
lence a government more liberal than was that of any 
other parent state, and one under whose protection 
they had heretofore enjoyed unexampled prosperity, 

John Adams, " The Martin Luther of the Revolu- 
tion," estimated that one-third of the colonists were 
opposed to a separation. The great number of 
refugees who accompanied Howe from Boston to 
Halifax, indicates that, in that hot-bed of rebellion, 
loyalty to the sovereign still burned in the bosoms 
of a large portion of the population. It is probable 
that more supporters of the king were to be found 
in the important Province of New York, where a 



92 THE LIFE AND TIMES OF JOHN JAY. 

landed aristocracy existed, than in any other. Gene- 
ral Greene thought that not more than one-third of 
the real estate was held by those who favored the 
American cause. The people in the interior dis- 
tricts recoiled from an armed conflict, and those 
dwelling on its long line of frontier dreaded the 
horrors of a savage inroad. Queens, one of the 
most populous of the rural counties, was almost 
unanimously opposed to the Whig proceedings, re- 
fused to hold elections when ordered by the patriots, 
and was finally placed beneath the ban of the State 
for its contumacy. 

Virginia, under the leadership of her eminent sons, 
took an early and decided stand in support of con- 
stitutional principles, Maryland soon following her 
lead. Opposition to Congress largely prevailed in 
the Carolinas, where there had been an influx of 
emigrants from Scotland, who had been "out" in 
'45. Pitt had not been without success in his efforts 
to secure for the House of Hanover the adherents 
of the Young Pretender, who were now strenuous 
in upholding the arbitrary measures of those who 
had supplanted the Stuarts upon the throne of 
England. The ministry, disconcerted by the general 
resistance, were influenced by the advice of refu- 
gees, who, mspired by their hopes or personal in- 
terests, naturally misrepresented the condition of 
affairs. 



i< 



INDEPENDENCE. 93 

In the early stages of the contest, wherever the 
British appeared, they were welcomed by friends, and 
furnished with needed supplies. These, however, 
soon refused to render them any open assistance, as, 
upon the withdrawal of the troops, they found them- 
selves left without protection to the scorn of their 
neighbors, and the tender mercies of the authorities. 
When the character of the war was changed by 
Germaine, the sanguinary proceedings of the soldiers 
in some of the States drove friend and foe alike to 
arms. In fact, the failure of the British was largely 
due to the many Tories in the colonies. Remember- 
ing the great number of Americans who had partici- 
pated in the French war, and relying upon their 
professions, the ministry at first supposed that it 
would require but a moderate European force to 
restore peace, as volunteers could be readily pro- 
cured from the loyal classes. The result showed 
that comparatively few were willing to leave their 
families and comfortable homes to encounter the 
hardships of a soldier's life, for the purpose of sus- 
taining a cause in which they had little direct con- 
cern. Of the small body of recruits obtained, the 
most efficient organizations were Ferguson's corps, 
demolished at King's Mountain, and Simcoe's cele- 
brated rangers, who, from their knowledge of the 
country, alone proved very serviceable to the side on 
which they were enlisted. 



94 THE LIFE AND TIMES OF JOHN J A Y. 

In reviewing the events of this period, the student 
is impressed by the weakness which, with rare excep- 
tions, characterized the different cabinets from the 
beginning of the trouble down to the close of the 
Revolution. To carry out the sovereign's wishes 
was the touchstone by which to retain office ; and in 
consequence, statesmen of spirit and capacity were 
debarred his counsels, and driven into opposition. 
There was among them no commanding mind, like 
Chatham in his prime, to call into action the re- 
served strength of the nation. Second and third 
rate men filled the higher departments. Under the 
inspiration of the king, ministers had entered upon 
a system of measures, clearly unconstitutional, which 
they had been warned would meet with resistance ; 
yet instead of being prepared to overcome this, or 
to recede from their designs, they acted throughout 
in a feeble and vacillating manner, forming plans 
with little consideration, and intrusting their execu- 
tion to agents without capacity or enterprise. The 
situation demanded the highest order of military 
genius, yet the task of subduing the colonies was 
confided to commanders like Howe and Clinton. 

In the beginning, some movement was made 
toward placing Lord Clive at the head of the army 
in America. Had this been carried into effect, there 
is little question that independence would have been 
postponed for many years. If that "heaven-born 



INDEPENDENCE. 95 

general " had landed, as did Howe, at the head of 
thirty thousand well-appointed troops, he would 
never have permitted Washington to escape over 
East River after the victory of Long Island, nor 
have paused in the pursuit of his reduced and dis- 
pirited forces across the Jerseys. Philadelphia would 
have been captured at once, and the tide of disaster 
have remained unturned by the surprise at Trenton. 
The Americans had already been driven from Canada, 
and gloom prevailed everywhere. A crushing de- 
feat at that time, before France had entered upon 
the scene, must have given a finishing stroke to the 
patriot cause. The States were not closely welded 
together. They were "still in the gristle, and not 
yet hardened into the bone of" nationality. Con- 
gress was a board of consultation, almost impotent 
for the exercise of sovereign functions, and did not 
dare provide a revenue, nor make a requisition upon 
its constituents, though its paper issues were daily 
becoming more and more discredited. 

Under these circumstances, with the American 
troops dispersed, and New York and Philadelphia 
held by a small garrison, all the States south of New 
England could have been kept in subjection, and 
that section ultimately reduced. But with Howe as 
commander of the British, American independence 
was already achieved. Bunker Hill decided the con- 
test. It had been sedulously asserted that the colo- 



96 THE LIFE AND TIMES OF JOHN JAY. 

nist was timorous by nature, and would not encounter 
regulars. The bloody repulse, so unexpectedly sus- 
tained in his attempt to carry that redoubt, dispelled 
this illusion from Howe's mind, and taught him a 
lesson which he never forgot. He dreaded a repe- 
tition, and hence permitted opportunities to pass 
which a bolder and more enterprising leader would 
have improved. 

Before a separation was declared, there had existed 
a division of sentiment among the Whigs as to the 
policy to be pursued ; but now the issue was sharply 
drawn between submission and entire independence. 
The legal authority was thenceforth on the side of 
the latter ; and whatever difference of opinion may 
have been entertained as to the expediency of the 
declaration, no open expression of dissent was tol- 
erated, except under the protection of the British 
flag. Each individual was called upon to take his 
stand. The entire sovereignty was removed from 
the king; and, from necessity, the people assumed 
control, and established governments in the several 
States. The Confederacy ranged itself beside the 
independent powers of the world, claiming a place in 
the council-chamber of nations, and the rights to 
which it was thereby entitled. These were yet to be 
vindicated by the sword. 

A common danger had brought the colonies to- 
gether, and preserved them in harmony, yet Congress 



INDEPENDENCE. 97 

possessed no jurisdiction whatever over its constitu- 
ents. It could decree, but not execute. It was per- 
mitted to contract debts, but not to create a revenue 
to pay them ; to form treaties, but not to enforce 
their provisions. Its inefficiency for the work in 
hand became speedily manifest ; and ignoring the 
popular voice, the Articles of Confederation were 
prepared, conferring enlarged powers upon the cen- 
tral authority. Virginia, while assenting to them, 
insisted that her boundaries extended indefinitely to 
the West; but as that section of the country had 
yet to be conquered at the expense of all the States, 
and by their joint efforts and sacrifices, they de- 
manded that it should be held as a general heritage 
to discharge the debt incurred during the war. 
Desirous of profecting the Union, all finally acqui- 
esced except Maryland. The instructions to her 
delegates alleged, "These lands have been grasped 
from ambitious motives, and she (Virginia) has not a 
shadow of right to these territories ; " and her Legis- 
lature proclaimed, the people of "this State consid- 
ered themselves justly entitled to a right, in common 
with the other members of the Union, to that exten- 
sive tract of country which lies to the westward of 
the frontiers." Although yearning for a closer con- 
nection with her sisters, she remained firm in her 
determination not to agree to the proposed instru- 
ment until this question should have been settled to 



98 THE LIFE AND TIMES OF JOHN JAY. 

her satisfaction ; saying, however, " We will accede 
to the Confederation, provided an article, or articles, 
be added thereto, giving full power to the United 
States, in Congress assembled, to fix the western 
limit of the States claiming to extend to the Missis- 
sippi or South Sea, and expressly reserving to the 
United States a right in common in and to all the 
lands lying to the westward of the frontier afore- 
said." Virginia was forced to yield to the pressure 
thus placed upon her : and it is safe to say, that, 
without this withdrawal of her pretensions, the "per- 
petual union " of the Confederation, and the " more 
perfect union " desired by our fathers, could never 
have been established ; for, with her domain reach- 
ing to the Mississippi, she would doubtless have 
formed a separate and independent commonwealth. 



NEW- YORK CONVENTION. 99 



IX. 

NEW-YORK CONVENTION. 

THOSE were no light words by which the patriot 
leaders pledged their lives and fortunes to the 
maintenance of a declaration severing all connection 
with Great Britain. It is true that her authority had 
been overthrown, and that she possessed at the mo- 
ment no military force within the disrupted provinces : 
yet the ministers had affirmed in Parliament, that, the 
sword being drawn, measures would be pursued to 
enforce complete submission ; and armies, forming, 
like a dark cloud, near the frontiers, threatened to 
overwhelm the newly created nationality. The subse- 
quent period stands out as among the darkest in the 
revolutionary annals. Decimated by sickness, and 
discouraged by reverses, the Americans had been 
disastrously expelled from Canada. No ally had as 
yet dared openly extend a helping hand. Like raw 
recruits, the States had not learned to rely upon each 
other, and distrust existed among them. Their 
paper money was declining in value, and there was 
no provision made for the future support of a mili- 
tary force. Before the declaration was signed, a plot 

LOFC 



100 THE LIFE AND TIMES OF JOHN JAY. 

had been discovered, formed by the Tories of New 
York, to make away with Washington and other 
officers of rank, and thus compel the surrender of 
the city to the British upon their arrival. General 
depression prevailed among the Whigs of the State, 
and McDougal wrote to Jay, that men of influence 
refused to accept commissions in the militia, and 
these positions had gone begging for many weeks. 
To encourage others by his example, the latter 
entered the military service. 

The British authorities had early suspected that 
America was looking forward to a separation ; and 
they consequently determined, while obtaining a 
revenue from her, to draw still tighter the bonds of 
colonial dependence. Their recent proceedings had 
satisfied Jay that this purpose would never be relin- 
quished without a deadly struggle, and that no recon- 
ciliation could at that time take place compatible 
with the honor, freedom, and future advancement 
of the country. He therefore believed the entire 
independence of the colonies to be necessary to their 
security, and had already in the General Congress 
earnestly endeavored to prepare them in every way 
for the contingency which had arrived. 

While thus employed, he was elected to the Con- 
gress of his native province, which was again to as- 
semble in the city of New York, May 14, 1776, and, 
at the request of his fellow-members, left Philadel- 



NEW- YORK CONVENTION. lOI 

phia, and joined them eleven days later. He had 
hardly taken his seat, when the resolutions advising 
the establishment of adequate governments for the 
separate colonies were received, and referred to him 
and others for consideration. The delegates, while 
authorized to exercise supreme jurisdiction, had so 
far performed only such duties as were demanded by 
the exigencies of the occasion. They were engaged 
in a struggle for the preservation of local self-gov- 
ernment, and would have been recreant to this prin- 
ciple, and have assumed a power with which they 
were not clothed, had they carried out the recom- 
mendation without a special warrant. Actuated by 
this conviction, the committee, through Jay, reported 
a series of resolutions declaring that the Provincial 
Congress had been organized for the sole purpose of 
resisting the usurpations of Parliament, requesting 
that delegates should be chosen for a convention to 
decide upon the expediency of forming a constitu- 
tion, and providing, that, should a majority approve, 
they were to be invested with authority to frame 
such a one as should be deemed best calculated to 
secure the rights and promote the happiness of the 
people. His associates at Philadelphia applied for 
instructions with reference to a separation from 
Britain ; and, at his instance, the powers of the pro- 
posed body were s6 enlarged as to enable it to deter- 
mine that and every other question which might 



102 THE LIFE AND TIMES OF JOHN JAY. 

arise in the future. No invading foe as yet trod the 
soil of New York, and the people were free to give 
expression to their wishes in matters so nearly 
concerning their political condition. 

An assemblage, thus clothed with absolute power, 
met at White Plains on July 9, with Jay as represen- 
tative from the city of New York. The Declaration 
of Independence, having by this time been adopted, 
was at once brought up for action. As chairman of 
the committee to which it was referred, he reported 
the same afternoon, "The reasons assigned by the 
Continental Congress, for declaring the United Colo- 
nies free and independent States, are cogent and 
conclusive ; and, while we lament the cruel necessity 
which has rendered that measure unavoidable, we 
approve the same, and will, at the risk of our lives 
and fortunes, join the other colonies in supporting it." 
This having been unanimously approved, the Conven- 
tion ordered copies of the Declaration to be printed, 
and distributed among the inhabitants for their infor- 
mation. The passage of this resolution by a body 
voicing the sentiments of the people, withdrew their 
allegiance from a foreign power, and rendered all 
citizens adhering to the king, or giving aid or comfort 
to the enemy, guilty of treason against the State and 
country. On the motion of Jay, such persons were 
declared liable to punishment by death. However 
rigid he may have been in the discharge of public duty, 



lYEJJ^-YORK CONVENTION. 103 

he displayed neither asperity nor harshness toward 
individuals. With the return of peace, past differ- 
ences were forgotten, and old friendships revived. 

The arch of American independence was sprung 
from Virginia and Massachusetts ; but, were the key- 
stone of New York withheld from the structure, it 
would topple to the ground. The situation was full 
of danger. That State had assumed her position in 
the very hour of conflict. An invading force had 
prevented the convention from meeting in the city. 
Indians and their white allies threatened her ex- 
tended northern frontier. Disaffection and treason 
ran riot within her borders, stimulated and encour- 
aged by the late royal governor These were the 
difificulties to be met and overcome. The approach 
of Howe had driven Jay from his home ; and for the 
succeeding two years, his whole thought, energies, 
and time were devoted to the interests of the new- 
born Commonwealth ; all eyes were turned to him as 
the trusted leader; and amid scenes of peril, he is the 
prominent figure, re-assuring the timid, sustaining 
the weak, and bringing all the resources of the State 
to resist the enemy. Rather than allow the British 
to gain a foot-hold within its bounds, he had favored 
a policy of burning the city, desolating the neighbor- 
ing country, and withdrawing to the interior; but 
such measures were too heroic for the public senti- 
ment : and, though Washington was authorized to 



104 THE LIFE AND TIMES OF JOHN JAY. 

destroy it in case of necessity, it continued the e7i- 
trcpot and headquarters of the EngUsh during the 
remainder of the war. 

Difficulties, with some, prove but opportunities ; 
and those surrounding the convention seemed to 
inspire it with greater energy and determination. 
Lord Howe having shown an intention to secure 
North River, and thereby sever the States, that 
body appointed a secret committee for the purpose 
of obstructing its navigation. As a leading member, 
Jay was unremittingly occupied for some weeks ; 
and at his instance a system of passports was estab- 
lished, to prevent intercourse with the city. As this 
proved somewhat inefficient, another committee was 
formed to inquire into and defeat all conspiracies. 
It was invested with unlimited authority to imprison, 
disarm, and banish Tories, or compel them to furnish 
security for their residence within specified limits. 
It was, in fact, empowered to exercise an extended 
and vigorous police system throughout the State ; 
and, under Jay's active and vigilant leadership, its 
labors were attended with the happiest results in 
breaking up conspiracies, destroying communication 
with the enemy, and keeping New York faithful to 
the cause.' 

' Local committees were appointed in each district to carry their resolutions 
into effect. The one at Kingston informed the Convention that the women 
surrounded the chamber, and said if they could not have tea their husbands 
and sons should fight no more. 



NEW- YORK CONVENTION. 105 

The general despondency which followed Washing- 
ton's retreat across New Jersey, induced the British 
commander to proclaim pardon and protection to 
those who would return to their allegiance. The 
convention thereupon issued an address to the peo- 
ple from the pen of Jay, which was found so effective 
in the State of New York, that the National Con- 
gress had it translated into German, and printed at 
the public expense, recommending it "to the serious 
attention of all the inhabitants of the United States." 
This eloquent and animated document says, " They 
tell you, that, if you submit, you shall have protec- 
tion ; that their king breathes nothing but peace ; 
that he will revise — not repeal — all his cruel acts 
and instructions, and will receive you into favor. . . . 
Have you heard of any terms except absolute, un- 
conditional obedience, and servile submission .■"... 
If he meant not to cajole and deceive you, why are 
you not explicitly informed of the terms, and whether 
Parliament mean to tax you hereafter at their will 
and pleasure .'' Upon these and like points, they 
are silent, unless a power to grant pardon implies a 
power to adjust claims and secure privileges; or, 
unless the bare possession of life is the only privilege 
which Americans are to enjoy. ... If the British 
king really desired peace, why did he order your 
vessels to be seized and confiscated, that the men 
found on them should be added to the crews of his 



I06 THE LIFE AND TIMES OF JOHN JAY. 

ships of war, and compelled to fight against their 
countrymen — to spill the blood of their neighbors 
and friends, — nay, of their fathers, their mothers, 
and their children, — and all this before these ambas- 
sadors of peace had arrived on our shores ? ... If 
there be a single idea of peace in his mind, why does 
he order your cities to be burned, your country to 
be devastated, your brethren to starve and languish 
and die in prison .-'... If any thing were intended 
besides destruction, devastation, and bloodshed, why 
are the mercenaries of Germany transported near 
four thousand miles } . . . They plunder your houses, 
ravish your wives and daughters, strip your infant 
children, expose whole families, naked, miserable, and 
forlorn, to want, to hunger, to inclement skies, and 
wretched deaths ; and why all this desolation, blood- 
shed, and cruelty .-' They tell you, to reduce you to 
obedience. ... If there be any among us dead to 
all sense of honor and all love of their country ; 
if deaf to all the calls of liberty, virtue, and religion ; 
if forgetful of the magnanimity of their ancestors 
and the happiness of their children ; if neither the 
example nor the success of other nations, the dic- 
tates of reason and nature, or the duties they owe to 
their God, themselves, and their posterity, have any 
effect upon them; if neither the injuries they have 
received, the prize they are contending for, the 
future blessings or curses of their children, the ap- 



NEW-YORK CONVENTION. 107 

plause or the reproach of all mankind, the approba- 
tion or the displeasure of the Great Judge, or the 
happiness or misery consequent upon their conduct 
in this and a future state, can move them, — then let 
them be assured that they deserve to be slaves, and 
are entitled to nothing but anguish and tribulation. 
. . . But we think better things of you. We believe 
and are persuaded that you will do your duty like 
men, and cheerfully refer your cause to the great 
and righteous Judge. If success crowns your efforts, 
all the blessings of freemen will be your reward : if 
you fall in the contest, you will be happy with God 
in heaven." 

Responsible for the safety of a State divided , 
within itself, while invaded by a ruthless foe, the 
duties of the convention were arduous, unceasing, 
and at times perilous. From the White Plains, the 
stress of war had driven it successively to Harlem, 
Fishkill, Kingston, and finally to Poughkeepsie. It 
was often impossible to obtain a full attendance, and 
a special committee was therefore authorized to 
operate in its stead when less than a quorum were 
present. One or the other of these bodies was 
always in session ; and for many months the records 
are made up of correspondence with their represen- 
tatives in the Continental Congress, Washington, 
and other military authorities, or with instructions 
for the removal of stock from the seaboard to the 



I08 THE LIFE AND TIMES OF JOHN JAY. 

interior, the arrest of the disaffected, and the punish- 
ment of those corresponding with the enemy, or re- 
fusing to receive American currency. They provided 
for the wants of the army by procuring provisions, 
purchasing material, and manufacturing clothing, 
borrowing money, caring for the distressed refugees 
from New York, and treating with the Indians. 
The committee was constantly shifting its place of 
meeting, which at times was unknown, even to its 
adherents. Thus, we find the members assembled at 
"Odell's house," and, shortly after, at that of "John 
Blagg," apparently in order to be near, and observe 
the movements of, the enemy. Jay seems to have 
taken an active part in this as well as in the Constitu- 
tional body, a large portion of the business devolving 
upon him. He was daily in attendance, except upon 
one occasion, when leave of absence was obtained, to 
remove his aged parents to a place of safety. His 
farm on Long Island was occupied by the foe ; and 
his wife having found a refuge with her father in 
New Jersey, no domestic duties interfered with those 
of a public nature. 

The main purpose of the convention was to pro- 
vide a constitution for the State, but the pressure of 
other matters had hitherto caused it to be post- 
poned. On Aug. I a committee of thirteen was 
appointed, with Jay as chairman, to " prepare a plan 
for instituting and framing a form of government," 



NEW -YORK CONVENTION. 109 

which was to be reported on the 26th of the 
same month ! Not, however, until the following 
spring was that instrument laid before the conven- 
tion, when it was discussed paragraph by paragraph. 
In the draught he had thought it prudent to omit 
several important provisions, intending to propose 
them as amendments when the constitution as a 
whole should be under consideration. Before that 
time arrived, he was summoned to the bedside of 
his dying mother, and, upon returning, found, to his 
chagrin, that, with slight changes, it had been 
adopted the previous Sunday. He was greatly an- 
noyed at this precipitate action, and declared that 
it was like a harvest cut before it was ripe, the grain 
being shrivelled. He had hoped to ingraft upon 
the organic law a clause providing for the abolition 
of domestic slavery, "when consistent with public 
safety and the rights of property," thinking thereby 
to confer upon New York the honor of being the 
first State to remove that colonial legacy. His efforts 
in that direction received the strenuous support of 
his friend, Gouverneur Morris ; but the measure was 
defeated mainly by the votes of those counties bor- 
dering on the Hudson. He never lost sight of the 
purpose, and twenty years later had the supreme 
satisfaction, as governor, of affixing his name to an 
enactment proclaiming universal freedom within its 
borders. He had inherited from his Huguenot an- 



no THE LIFE AND TIMES OF JOHN JAY. 

cestors an antipathy to the teachings of the Romish 
Church, and, in consequence, endeavored to insert a 
clause, excluding from the elective franchise those 
who held that the pope or priest had power to annul 
oaths, or even to grant absolution. He was fortu- 
nately overruled, and unlimited toleration became 
for all time the policy of the State. 

The rights of the colonies were, to a considerable 
extent, defined by the royal charters ; and it was 
natural that these should suggest to the States 
the importance, and in many cases form the germ, 
of their written constitutions. Acting under the 
necessity imposed by the ministerial measures, and 
authorized, as we have seen, by the Continental 
Congress, nearly all of them had established distinct 
governments ; Rhode Island and Connecticut retain- 
ing their charters, which embraced the safeguards 
essential to the liberties of their citizens. With the 
single exception of Pennsylvania, the supreme legis- 
lative power was everywhere lodged in two houses, 
while the executive and judicial departments were 
separate and independent in their spheres. All 
the constitutions were republican, and similar in 
their general character. Authority was recognized 
in them as a trust emanating from the people, and 
imparted for their protection. 

That of New York continued in force, with slight 
amendments, for nearly half a century; and as it 



NEW- YORK CONVENTION. iii 

embodied many ideas held at the time by Jay, 
and afterwards embraced in the Constitution of the 
United States, it is well to enumerate some of 
its provisions. After reciting the proceedings of 
the Continental Congress, the subsequent action 
of the Province, and the desertion of its royal gov- 
ernor, the document proceeds to say, "All power 
thenceforth reverts to the people ; " and " this con- 
vention, in the name, and by the authority, of the 
good people of the State, doth ordain, determine, 
and declare that no authority shall, on any pretence 
whatever, be exercised over the people of the State, 
but such as shall be derived from and granted by 
th,em. . . , The common law of England, and all 
laws enacted before April 19, 1775, shall continue 
in force ; and no person shall be disenfranchised or 
deprived of any right, unless by law, or the judg- 
ment of his peers;" and "the free exercise and 
enjoyment of religious worship, or profession, shall 
forever be allowed." Jay believed that those who 
owned the land should rule it : and the legislative 
authority was accordingly vested in an Assembly 
and Senate, the former to be elected by voters 
possessing freeholds valued at twenty shillings per 
annum ; the latter by those whose yearly landed 
income amounted to one hundred pounds, New- 
York currency. The governor, chancellor, and 
judges of the Supreme Court formed a council 



112 THE LIFE AND TIMES OF JOHN JAY. 

for the revision of all enactments, exercising over 
them the same qualified veto as the President of 
the United States does over those of the National 
Congress. The assembly had to select, yearly, 
one senator from each district, who, in conjunc- 
tion with the governor, was to appoint all public 
oflicers. Here is seen that jealousy of the execu- 
tive which had been aroused by the former actions 
of the royal magistrate. The State had recently 
been freed from this noxious influence ; and the 
members hoped to protect it against the abuse of 
patronage by a diffusion of the appointing power, 
forgetting that while doing so they diminished re- 
sponsibility in the same proportion. This feature of 
the constitution became in time the source of great 
political corruption, producing an unseemly conflict 
of authority, and with general approval was swept 
away at the close of Jay's second term as governor. 

These were some of the provisions of the instru- 
ment adopted, with a single negative, on the evening 
of April 20, 1777. Owing to the disturbed condition 
of affairs, it was not submitted to the people for 
their sanction, as is customary at the present day, 
but was simply proclaimed by the secretary, standing 
on a barrel in front of the Court House at Esopus. 
It had yet to be established over the State ; and 
with the enemy occupying some sections, and dis- 
affection prevailing in others, how to accomplish 



NEW-YORK CONVENTION. 113 

this became a matter for profound consideration. A 
committee of five, with Livingston as chairman, was 
formed, to prepare a plan for setting the new ma- 
chinery in motion. The choosing of a chief magis- 
trate and Legislature would require time ; so after 
providing for their election, and organizing a judicial 
system, the convention bestowed upon a ** Council of 
Safety" its anomalous and unlimited powers, and 
finally dissolved. 

Jay had been made chief justice, with his former 
partner, Robert R. Livingston, as chancellor. Both 
of them were also members of this last body. Its 
duties during the next four months were constant 
and laborious. That period of time covered Bur- 
goyne's invasion from the North, and Clinton's 
incursion from the South, the abandonment of 
Ticonderoga, and the advance of St. Leger, with 
his Indian allies, along the valley of the Mohawk. 
The consequent dismay and distrust resulted in the 
displacement of the austere but patriotic Schuyler 
from the command of the American army, and em- 
boldened the disloyal to conspire for the overthrow 
of the incipient Commonwealth, and the delivery of 
the State into the hands of its enemies. Jay be- 
lieved that the object of government was to govern, 
and therefore exercised the dictatorial power con- 
ferred upon the council, with the unflinching energy 
that such an extraordinary crisis demanded. The 



114 THE LIFE AND TIMES OF JOHN JAY. 

disaffected were overawed, or punished for their 
overt acts, the disheartened patriots stimulated and 
encouraged, resistance was organized, and the com- 
plete installation of the new authorities was followed, 
after a brief period, by the surrender of Burgoyne, 
and the expulsion of the British from all the terri- 
tory recently overrun. 

Though George Clinton had been elected gov- 
ernor, and was inaugurated in July, he remained 
with the army in front of the enemy, his functions 
meanwhile devolving mainly on the Council of Safety. 
The Legislature chosen under the new constitution 
assembled in September, after which every thing 
proceeded with system and regularity. By the stren- 
uous exertions of the patriot leaders during these 
years, amid unexampled difficulties. New York had 
been preserved to the American Union ; and now, 
with a popular government over her extended terri- 
tory, that Union was immovably fixed, and all hope 
of the ultimate success of the ministerial cause for- 
ever extinguished. 'Tis the last keystone that makes 
the perfect arch. While the convention was occu- 
pied in framing a constitution, Congress was engaged 
in a similar undertaking. Possessing less energy 
than the Swiss, weaker than the Dutch, and inade- 
quate in times of peace, the articles of Confederation 
still claim respect as the harbinger of national sen- 
timent, and the forerunner of an efficient organiza- 



NEW-YORK CONVENTION. 115 

tion. South Carolina soon followed New York with a 
permanent constitution. Congress was then enabled 
to issue an address declaring, " Our respective gov- 
ernments, which compose the Union, are settled, and 
in the vigorous exercise of uncontrolled authority," 

Jay had been solicited to become a candidate for 
the gubernatorial chair instead of Clinton, but de- 
clined the proffered honor as he could " be more use- 
ful" in the place he then filled. Though appointed 
chief justice of the State in the previous spring, the 
condition of public affairs had heretofore precluded 
the performance of his official duties. Now, how- 
ever, when the other departments were in successful 
operation, it became necessary for the highest judi- 
cial tribunal to discharge its functions as the inter- 
preter of the laws of the Commonwealth. On Sept, 
9, the first term of the Supreme Court was held at 
Kingston. With a war raging, of which all shared 
the suffering, and none could foresee the termination, 
he was called upon to deliver his charge to the grand 
jury. He was but thirty years of age, with his early 
manhood ripened by varied experience in public life. 
Tall, and erect in carriage, the judicial robe added 
dignity to his appearance. The change of New York 
from a province to a sovereign State rendered the 
occasion one of peculiar interest. With the deepest 
feeling he said that Divine Providence had made 
the tyranny of princes instrumental in breaking the 



Il6 THE LIFE AND TIMES OF JOHN JAY. 

chains of their subjects, reviewed the causes that 
had led to the separation from Great Britain, showed 
its necessity, and pointed out the duties which the 
citizen had thereby assumed. After commenting 
upon several features of the new instrument, he thus 
proceeded : " But let it be remembered, that what- 
ever marks of wisdom, experience, and patriotism 
there may be in your constitution, yet like the beau- 
tiful symmetry, the just proportions, and elegant 
forms, of our first parents, before their Maker 
breathed into them the breath of life, from the peo- 
ple it must receive its spirit, and by them be quick- 
ened. Let virtue, honor, the love of liberty and of 
science, be and remain the soul of the Constitution, 
and become the source of great and extensive hap- 
piness to this and future generations. Vice, igno- 
rance, and want of vigilance, will be the only enemies 
able to destroy it." Like most of the public ad- 
dresses of Mr. Jay, this appears to have attracted a 
great deal of notice at the time of its delivery, and 
has since been frequently republished for its literary 
merit and patriotic sentiments. His commission as 
chief justice expired with the first meeting of the 
Legislature ; but the Council of Appointment, by re- 
newing it, testified their approval of his course. Un- 
fortunately, no record has been preserved of the cases 
brought before the court, nor of the decisions ren- 
dered during the short period that he remained upon 



NEW-YORK CONVENTION. 11/ 

the bench. For a long time past he seems to have 
had no permanent abiding-place, which, to a man of 
his domestic habits, was a source of continued dis- 
comfort. He now determined to remove his family 
from their retreat in New Jersey, and establish him- 
self at the seat of government. Upon learning his 
intention, Schuyler, with characteristic generosity, 
proffered him a farm near Saratoga. This he was 
compelled to decline, as his father required his per- 
sonal care. The death of his wife and the destruc- 
tion of his home had depressed the spirit of Peter 
Jay ; and his saddened old age demanded all the 
affectionate attention that the son could bestow, and 
hence the latter preferred remaining by his side. 

In addition to his judicial duties, Jay, as a member 
of the Council of Revision, to which all bills were 
submitted before they became laws, was obliged to be 
in attendance upon the Legislature during its entire 
session. In the summer, he proceeded with Gouver- 
neur Morris to headquarters, for the purpose of in- 
ducing Washington to re-enforce the army then 
operating in front of Burgoyne ; and when the cap- 
ture of the forts at the Highlands, and the burning of 
Kingston, had manifested the danger to be appre- 
hended from the British at New York, the chief jus- 
tice, with other State officers, selected West Point as 
the spot whereon to erect fortifications with a view 
of preventing further inroads. 



Il8 THE LIFE AND TIMES OF JOHN JAY. 



X. 

PRESIDENT OF CONGRESS. 

THE territory lying between New York and New 
Hampshire had been the subject of controversy 
for many years, each of the provinces claiming its 
ownership. The question was referred to the au- 
thorities in England, who determined in favor of the 
first named. New Hampshire, in the mean while, 
made grants within the coveted domain, which had 
been cleared by their possessors, and were now under 
successful cultivation. When the decision was made 
in her favor, New York resolved not only to extend 
her jurisdiction over the country in dispute, but re- 
quired possession of the lands held under these titles. 
Having reclaimed them from the wilderness, and 
given them a value by their labors, the settlers natu- 
rally protested against the injustice of the proceed- 
ing, and finally asserted their entire independence of 
the State. Both parties appealed to the Continental 
Congress, and New York demanded Jay's presence 
in that body for the protection of her fancied rights. 
He had resigned his seat as a delegate when ap- 



PRESIDENT OF CONGRESS. 1 19 

pointed to the bench, and the Constitution forbade 
his resuming it except "on a special occasion." The 
Legislature in October accordingly declared that 
such then existed ; and he was again elected, being 
commissioned by the governor, on Nov. 18, as a 
representative until the ensuing March, "and no 
longer." 

On Dec. 7, 1778, he again took his seat after an ab- 
sence of more than two years. The president, Laurens, 
had not given entire satisfaction ; and having with- 
drawn with some feeling, the vacancy was promptly 
filled by Jay three days after his arrival, who thus 
became chief executive of the Confederated States. 
The elevation involved daily attendance upon Con- 
gress, and an extensive official correspondence, sweet- 
ened, withal, by none of the emoluments or patronage 
attached to office at the present day. A furnished 
dwelling, with table, carriage, and servants, was, how- 
ever, provided at the public expense ; and his style of 
living, therefore, comported with the dignity and 
importance of the station. His prudence, firmness, 
and devotion to duty, eminently qualified him for that 
post which he occupied for many months, without a 
single day's absence. Congress had yet to realize 
the necessity of creating separate departments with 
an efficient head to each, and hence spent a large 
portion of its meetings on mere questions of detail. 
Its overworked president was the organ of commu- 



120 THE LIFE AND TIMES OF JOHN JAY. 

nication with the army, the State authorities, the 
French ambassador, and the country's agents and 
ministers in Europe. 

It was greatly inferior in ability to those earlier 
assemblies which had conferred so much honor upon 
the country. Most of the men then prominent in 
resisting ministerial aggression, and proclaiming in- 
dependence, were now employed abroad, or, disgusted 
with a position in which no credit could, be reaped, 
and little good accomplished, had retired, or were 
engaged in the service of their respective States, 
where their influence might be felt, and some repu- 
tation acquired. As Gouverneur Morris expressed 
it, the members and the currency had alike depre- 
ciated. 

The recent separation was a movement on the 
part of the people, but they were no longer recog- 
nized ; and the several State Legislatures assumed 
the selection of delegates, who, in consequence, re- 
flected the rivalries and jealousies of their constitu- 
ents. Many adherents of the Conway Cabal were 
among the number, and secretly promoted measures 
adverse to Washington and the military. The want 
of harmony in the national councils had become 
painfully manifest, and aroused the solicitude of the 
leader of the army, who earnestly strove, by appeals 
to their patriotism, to bring back to the country's 
service those statesmen who had withdrawn into pri- 



PRESIDENT OF CONGRESS. 121 

vate life. Some most important questions were to 
be brought before Congress whose decision would 
have great bearing upon the future destiny of the 
States, and men of high character and ripe experi- 
ence were therefore needed. 

The Legislature of New York had especially in- 
trusted her chief justice with the management of the 
controversy relating to Vermont. There was, how- 
ever, an evident unwillingness on the part of Con- 
gress to assume the settlement of so delicate a point. 
Many of the members thought that body had been 
instituted for the sole purpose of securing the liber- 
ties of the country, and was not authorized to go 
beyond this, and interfere in disputes between any 
one of the States and its recalcitrant citizens. 
During the past summer, it had instructed a com- 
mittee to visit the New-Hampshire grants, and in- 
quire into the trouble ; but no proceedings had been 
taken in the matter. Jay's first object, therefore, 
upon his arrival, was to prevail on Congress to inter- 
vene in some degree ; as he felt satisfied, that, by so 
doing, it would be led to a further and more effective 
interposition. He finally succeeded in having it as- 
sume jurisdiction, appoint a time to hear and examine 
into the case, and ultimately decide it upon equitable 
principles. When, however, the day arrived for the 
trial, a quorum of members from disinterested States 
was not present, and no action could be obtained. 



122 THE LIFE AND TIMES OF JOHN JAY. 

Vermont had already formed a constitution for her- 
self: and the question of her separation from New- 
York dragged along for twelve years, when it was 
finally adjusted by her paying the latter State the 
sum of thirty thousand dollars for the relinquishment 
of all claims ; and she was thereby quietly placed in 
a condition to be received into the Union. This, 
however, was not effected until a territory at the 
South had grown sufficiently populous to be admitted 
at the same time. 

The winter of 1779 was passed by the British 
officers in comfortable quarters at New York amid 
a round of gayety and dissipation. Theatrical and 
other entertainments served to enliven the tedium of 
constrained idleness ; and in the preparation of these, 
the accomplished but unfortunate Andre bore a con- 
spicuous part. He wrote, among other things, a lam- 
poon, the coarseness of which contrasted painfully 
with the deep tragedy of the following year. It was 
entitled " Metcmpsicosis," and professed to witness 
the final judgment passed upon several of the Ameri- 
can leaders. The record says that " the allusions to 

Jacky Jay and other rebellious were excellent, 

and gained much applause." "The president of Con- 
gress, Mr. Jay," writes Andr6, "now appeared ; and I 
heard with emotion and astonishment that he had 
been remarkable for a mixture of the lowest cunning 
and most unfeeling barbarity, and that being indefat- 



PRESIDENT OF CONGRESS. 123 

igable in the pursuits of ambition and avarice, by all 
the ways of intrigue, perfidy, and dissimulation, he 
had acquired the station of a chief justice, and had 
framed and enforced statutes that destroyed every 
species of private security and repose." The court 
thereupon ordered, " that he transmigrate into the 
most insidious and most hateful of all animals, a 
snake ; but to prevent his being able any longer to 
deceive, and thereby destroy, a large set of rattles 
was affixed, to warn mankind to shun so poisonous a 
thing." 

While the British were thus amusing themselves, 
the American troops, hutted in the open country, 
endured privations of every kind. These were so 
great that Washington deemed affairs worse than at 
any former period, and at one time thought it hardly 
possible to keep his forces together. The great 
Frederick said in homely phrase that " an army, like 
a snake, moved on its belly ; " and the inefficiency of 
the commissariat prevented the commander-in-chief 
from undertaking any enterprise, however promising. 
He stated that his soldiers were half starved, imper- 
fectly clad, robbing the farmers from sheer necessity, 
and that they ate every kind of horse-feed except 
hay. The currency had become so depreciated that 
no proper provision could be made for them in ad- 
vance. In the beginning, it was hoped that the 
determined attitude of the people would soon induce 



124 1^^^ LIFE AND TIMES OF JOHN JAY. 

the mother country to recede from her pretensions, 
and hence no permanent arrangements had been 
made to meet the expenses of the seven years' 
struggle which ensued. Before the Declaration was 
issued, France and Spain had, in conjunction, fur- 
nished material supplies ; and, in order to meet 
further demands, a paper currency, based on the faith 
of the associated colonies, was authorized, and an 
appeal for loans made to the moneyed men of the 
country. The same general system of" finance was 
pursued by many of the States, and thus nearly all 
of them became borrowers. The security they offered 
being of a less questionable character than that of 
the Confederacy, its loan-ofBces failed to gather in 
much pecuniary assistance. The cohesive power of 
the States was too slight to bear any strain ; and no 
requisition was made upon them by the central au- 
thority until 1777, when only three millions were ob- 
tained — one-half of the amount solicited. In the 
present condition of the world, money is necessary 
in carrying on any successful war ; and, by reason of 
their possessing greater facility in procuring this 
commodity, commercial nations have an advantage 
over those dependent upon agriculture. Privateering, 
though looked upon as a serious drawback to recruit- 
ing the army, had proved of considerable service; for 
the captures made, when aided by the contributions 
of France, had assisted in somewhat buoying up the 



PRESIDENT OF CONGRESS. 125 

sinking finances. The main reliance for the prosecu- 
tion of the war seemed, notwithstanding, to rest upon 
the currency issued by Congress ; and this ready means 
of providing funds without open taxation, induced a 
frequent resort to the printing-press. The inevitable 
consequence followed. The purchasing-power of the 
paper lessened with its continued emissions ; and 
gambling, monopoly, and speculation became rife 
throughout the country. Irredeemable notes to the 
value of one hundred and fifty odd miUions were 
afloat besides those of the States; and the attend- 
ant evils had become so manifest, that Congress 
determined to limit the amount to two hundred, 
and called upon the separate States to contrib- 
ute, first fifteen, and afterward forty-five, millions. 
To render this appeal more effective, the president 
prepared a circular to the several Legislatures, laying 
bare the financial embarrassment, pointing out its 
cause, and proving the necessity they were under 
of aiding a Confederacy rapidly drifting into bank- 
ruptcy. He further demonstrated, that upon the 
restoration of peace, now assured by having an ally, 
the country would be able to discharge all obligations 
incurred while establishing independence. This ap- 
peal, like others of the kind, failed of its purpose. 
No available resource remained but a further issue 
of currency, which was followed by a still further 
decline in value. After the usual round of efforts 



126 THE LIFE AND TIMES OF JOHN JAY. 

to support what had no foundation, the paper money 
died in the hands of its possessors, quietly passing 
out of existence ere the year ended. It had been of 
infinite service during its life, yet its demise was 
regretted by none. 

The surrender of Burgoyne had led France to 
openly espouse the cause of the colonies, and the 
intimate connection between the courts of Versailles 
and Madrid gave hopes that Spain would pursue a 
like course. She had already secretly aided them 
with military stores, and it was thought that her 
active participation in the struggle would prove de- 
cisive. With this view, provision had been made 
in the French treaty for her joining the league 
against England. Though her sensibility had been 
wounded by that power's imperious conduct in the 
Falkland-Island flurry, and she was therefore quite 
willing to be instrumental in reducing British arro- 
gance, there were objects of her own in America 
which she desired to secure before engaging as a 
principal in the contest. These were the undisputed 
possession of the country west of the Alleghanies, 
where King George had forbidden his subjects to 
settle ; the exclusive navigation of the Mississippi 
River ; and an acknowledgment of her right to con- 
quer and retain Florida, and thus dominate in the 
Gulf of Mexico. She was displeased that the French 
Court, knowing her wishes, had not regarded them 



PRESIDENT OF CONGRESS. 12/ 

when entering into alliance with the United States. 
The necessities of his country were at that time 
too great for Franklin not to have conceded every- 
thing required, had the two European powers joined 
in demanding it. 

National decay and national pride had gone for- 
ward side by side ; and Spanish statesmen instinc- 
tively dreaded the enterprising spirit of America, 
and the effect that her success would have upon 
their own possessions. Grimaldi, the premier, had 
written Choiseul, ''This [independence] would be 
dangerous by the sagacity, persistence, and stead- 
fastness of the measures that America would take 
for carrying out plans of conquest," As early as 
January, 1776, the Continental Congress had author- 
ized the capture, from England, of the castle and 
barracks at St. Augustine ; and American commerce, 
with the connivance of the royal governor, had 
recently obtained a foot-hold at the city of New 
Orleans. The knowledge of these proceedings was 
not calculated to remove Spain's prejudices against 
the English colonist. 

She held aloof, and, though urged by France, 
hesitated throughout, at no time overcoming her 
apprehensions, and cordially granting open assist- 
ance. In February, 1779, Congress was officially 
notified of her proffered mediation between the bel- 
ligerents. The matter was at once referred to a 



128 THE LIFE AND TIMES OF JOHN JAY. 

select committee, with Gouverneur Morris as chair- 
man, whose able report, embracing all questions likely 
to arise, furnished to a large extent a basis for 
the treaty ultimately negotiated with Great Britain. 
The reader must bear in mind that instructions were 
to be prepared for an envoy to Madrid, as well as 
for the commissioners who were to be intrusted 
with the negotiation of a general treaty of peace. 
In drawing up the documents, not only was proper 
consideration to be paid to the expressed condition 
of the alliance with France, but her interests were 
to be consulted when not conflicting with those of 
America. Though Neckar presided over French 
finances, the expenses of the war were rapidly ex- 
hausting the country's resources. To secure, there- 
fore, the aid of Spain, — her ancient ally, — she was 
not unwilling to have the United States sacrifice in- 
disputable claims, and accept the mother country's 
proposals of peace, even though British pride should 
debar a formal concession of independence. 

Gerard, the French minister, had before directed 
the attention of the members to the propriety of 
endeavoring to enlist Spain in the common cause, 
and intimated, that, if America would conform to her 
wishes in the matter of the Western claims, she 
(Spain) would enter cordially into the alliance, and 
pecuniary assistance to a large amount might then 
be reasonably expected. In a personal interview 



PRESIDENT OF CONGRESS. 129 

with Morris, and subsequently with Congress itself, 
he strenuously endeavored to win them over to this 
view of the situation, — to have them abate their 
pretensions beyond the Alleghanies, and direct their 
commissioners, that, if found necessary when nego- 
tiating a peace, they should yield the point of an 
express acknowledgment of their country's inde- 
pendence. 

The report on the subject, made by Morris's 
committee, gave rise to a prolonged discussion in 
Congress, which brought out in strong relief the 
sectional feeling heretofore almost dormant. The 
questions relating to the eastern boundaries, inde- 
pendence, and the evacuation of the country, were 
settled with little difference of opinion ; but those 
respecting the fisheries, and the rights of the United 
States upon the Mississippi, representing, as they 
did, opposite interests, evolved much heat during 
the debate. The Newfoundland fisheries, employing 
great numbers of mariners, had been a source of 
large revenue to the New-England people, who were 
naturally unwilling to part with any of the advan- 
tages they had enjoyed when under British rule. It 
was supposed that the mother country, while in 
the act of releasing her former subjects from their 
allegiance, would desire to exclude the new-born 
States from a share in what she always asserted was 
an unfailiniT resource for seamen. It was therefore 



I30 THE LIFE AND TIMES OF JOHN JAY. 

a matter of earnest consideration whetlier a partici- 
pation in them should be made an ultimatum in the 
proposed instructions, and, if so determined, how 
far the support of France could be counted upon. 
As the fisheries were exclusively an Eastern interest, 
the Southern members were indisposed to pledge 
the country to the maintenance of pretensions thus 
put forward at the hazard of prolonging a destruc- 
tive war for an indefinite period. The invasion of 
the royal forces was pressing heavily upon Georgia 
and the Carolinas. Charleston had been taken ; and 
the British troops were sweeping over portions of 
those States, destroying the crops, carrying off the 
negroes, and devastating the country. 

The United States claimed the territory as far 
west as the Mississippi River, and down the stream 
to the thirty-first parallel, with the common use with 
Spain of its waters above that point, and desired 
to secure its unrestricted navigation onward to the 
ocean. With contracted ideas of the future great 
importance of the river, or possibly by way of a 
counterpoise to the Southern position respecting the 
fisheries. Jay, and most of the New-England dele- 
gates, expressed themselves as not unwilling to give 
up a part of their claims, could Spain be thereby 
induced to join the alliance, and assist their country 
in its arduous struggle for independence. Some of 
them believed that the remainder of the territory 



PRESIDENT OF CONGRESS. 13 1 

belonging to the Confederacy was sufficiently large 
for all national purposes, and would have been satis- 
fied to have that portion beyond the Mississippi in 
possession of a people speaking a foreign language, 
as a barrier against the tide flowing to the Occi- 
dent. Emigration had already begun, and the States 
that they represented were apprehensive of being 
drained of population. 

Their prophetic vision failed to embrace the future 
grandeur of their country's domain, as well as the 
great commercial value of the Mississippi. This is 
evident from what Morris wrote the following year : 
"As to its navigation, everybody knows that the 
rapidity of its current will forever prevent ships 
from sailing up it." An assertion like this will 
cause a smile at the present day ; but it must be 
remembered that this opinion was expressed thirty 
years before the " Clermont " stemmed the down- 
ward flow of the Hudson, on her initial voyage to 
Albany. The Southern members, with truer national 
instincts, realized in a measure the river's infinite 
importance to the Union, and demanded that, in any 
arrangement made, the absolute right to its free 
use north of thirty-one degrees should not be sur- 
rendered. Notwithstanding the impatience and in- 
trigues of Gerard, or perhaps in consequence of 
them, the debate on these instructions continued in 
Congress during the entire summer. The numerous 



132 THE LIFE AND TIMES OF JOHN JAY. 

suggestions made from time to time indicate the 
difficulty experienced in arriving at an agreement. 
It so happened that the delay was a fortunate circum- 
stance for the interests of the Confederation. The 
effort of Spain to mediate between the nations at war 
proved fruitless, as had perhaps been foreseen ; and 
in the following June she was, as an ally of France, 
involved in hostilities with England, America was 
thus relieved from the necessity of conceding any 
thing to obtain her assistance, for which she would 
have been willing to make large sacrifices. 

This changed aspect of affairs solved the difficulty 
under which Congress labored ; and, in framing in- 
structions for a plenipotentiary at Madrid, it passed 
over the question of boundaries altogether, and 
directed him to negotiate a commercial treaty with 
Spain, and, if possible, borrow money from her. 
He was authorized to guarantee her the possession 
of Florida, should she succeed in wresting it from 
England, provided the United States should in re- 
turn "enjoy the free navigation of the river Missis- 
sippi into and from the sea," The instructions 
prepared for the commissioners who were to treat 
with Great Britain, required them to demand an 
express acknowledgment of independence, and a par- 
ticipation in the fisheries. It was determined, how- 
ever, that this latter claim should not be made an 
ultimatum. 



PRESIDENT OF CONGRESS. 133 

Matters having been thus happily adjusted, Con- 
gress proceeded to appoint a minister plenipotentiary 
to reside at Madrid, and conduct the negotiation. 
The qualifications of Jay had long since pointed him 
out as a most suitable person for the position ; and 
on Sept. 28, 1779, upon the motion of Mercer of 
Virginia, he was accordingly elected ; the annual 
salary attached to the office being subsequently fixed 
at twenty-five hundred pounds sterling, besides one 
thousand to each of his secretaries. He now re- 
signed the chair, after fourteen months' occupation, 
to serve his country in a wider field, and one weighted 
with heavy responsibilities. 



134 THE LIFE AND TIMES OF JOHN JAY. 



XL 

MISSION TO SPAIN. 

THE French ambassador wishing to return home, 
Congress had tendered him the frigate " Con- 
federacy " for the purpose ; and it was now arranged 
that the newly appointed plenipotentiary should em- 
bark in the same vessel. His instructions having 
been prepared, Jay hurriedly departed, in October, 
on his mission, accompanied by his wife, with her 
brother, Brockholst Livingston, as his private secre- 
tary, and Mr. Carmichael as secretary of legation. 
His experience in public life had heretofore been 
among friends who were enlisted in the same cause, 
and from whom he could seek counsel and advice in 
any emergency. A new scene was now opening 
before him, calculated to task all his abilities, indus- 
try, and self-reliance. He was no longer the deputy 
of a State, but was proceeding abroad as the repre- 
sentative of the whole country, prepared to advocate 
her claims, promote her interests, and sustain her 
dignity before a court hedged round with ceremonial 
to which he was a stranger. Its diplomatic organ 



MISSION TO SPAIN. 135 

was a prime minister, dignified, astute, and irascible, 
who looked upon the uprising in America as treason 
to a lawful sovereign, and fraught with danger to all 
States having colonial dependencies. 

In a gale off the banks of Newfoundland, the 
"Confederacy" was dismasted, which, followed by 
the displacement of her rudder, compelled her to 
bear away for the island of Martinique. Upon their 
arrival at that place, the passengers were transferred 
to a French frigate, which sailed two days later, 
and, narrowly escaping capture by a British man-of- 
war, reached Cadiz before the close of the succeed- 
ing January. Mr. Carmichael was sent thence to 
Madrid, with despatches from Jay announcing his 
arrival, stating his determination to await permis- 
sion before proceeding to the capital, and expressing 
the desire of Congress that Spain should join the 
alliance. Count Florida Blanca replied, assuring 
him there was no obstacle to his coming to court 
for the purpose of settling upon the manner and 
forms of a negotiation, but that, until these points 
should have been adjusted, it would not be proper 
for him to assume an official character, as that must 
depend upon a public acknowledgment by the gov- 
ernment, and a future treaty between the countries. 
The tenor of the despatch made it evident to Jay's 
mind that Spain attached great importance to her 
recognition of the United States, and was not dis- 



136 THE LIFE AND TIMES OF JOHN JAY. 

posed to grant it without ample compensation. Her 
authorities were chagrined, as we have seen, that 
her interests had not been protected by France ; and 
although the family compact had drawn the two 
countries together, it was known that their subjects 
still entertained for each other much of the antag- 
onism which had been engendered in the previous 
century. 

Upon the strength of the cold and formal permis- 
sion granted him, the American envoy journeyed on 
to Madrid, where he arrived early in April. A docu- 
ment from the prime minister was at once placed in 
his hands, asking, as preliminary to any negotiation, 
specific information about the government, revenue, 
and debts of the American States, and their ability 
to assist his Catholic majesty should he consent 
to occupy in the alliance that place which had been 
reserved for him. To the numerous questions pro- 
pounded. Jay made an elaborate and exhaustive reply, 
giving the population, resources, and condition of 
his country, and dwelling upon her ability to dis- 
charge any obligation incurred while overcoming the 
common enemy. He closed by expressing the opin- 
ion that a supply of military stores and a moderate 
sum of money furnished by France and Spain would 
prove the most effective means of reducing the power 
of an irreconcilable enemy to the House of Bourbon. 

Building "castles in Spain" has become proverbial, 



MISSION TO SPAIN. 137 

and Congress in the present case certainly banked 
on hope ; for, without even waiting to hear of Jay's 
arrival, it had authorized drafts upon him to the ex- 
tent of a hundred thousand pounds. His dignity was 
necessarily lowered, and his future influence impaired, 
by this unfortunate though unavoidable course, as 
he was thereby placed in the mortifying position of 
a needy solicitor at the court rather than as the repre- 
sentative of an independent State. He had hardly 
sent his reply to Florida Blanca's letter, when advice 
was received of this proceeding, and of the probable 
early appearance of some of the bills in question. 
The situation necessarily caused him extreme em- 
barrassment ; and the matter was at once made 
known to the premier, with the not very satisfactory 
apology that Congress thought *' they could avail 
themselves of his majesty's friendship on no occasion 
more agreeable to him and advantageous to them." 

In the interview which followed, the count dwelt 
upon the straitened condition of the Spanish 
finances caused by the war in which the nation was 
then engaged, and the consequent failure of remit- 
tances from its colonial possessions. He, however, 
assumed the payment of such bills as might be pre- 
sented during the remainder of the present and the 
earlier part of the following year. Their aggregate 
amount was estimated at thirty or forty thousand 
pounds, and he thought it might be in his power to 



138 THE LIFE AND TIMES OF JOHN JAY. 

furnish in addition some supplies of cloth for the 
distressed American army. 

Having, as he supposed, smoothed the way, he 
introduced the subject of a treaty between the coun- 
tries, intimating that the only obstacle was the pre- 
tensions of the United States at the West. He had 
received from his agent, Mirales, information of the 
debates in Congress, was aware of the ambassador's 
instructions, and said that, while his Catholic majesty 
was disposed to extend all the aid in his power, he 
would, under no circumstances, relinquish his claim 
to the exclusive navigation of the Mississippi. It 
was suggested on the other side, that perhaps some 
equitable adjustment of the matter might be made ; 
but the count rejoined that the king had this ques- 
tion very much at heart, and would never relinquish 
his claim, and, when taking leave of Jay, desired 
him to turn his thoughts to the subject, and try if 
some way could not be found to get over the diffi- 
culty, — in other words, if he could not violate his 
instructions. Spain showed no disposition to enter 
into any negotiation unless this point should first 
have been conceded. The assistance she had agreed 
to render, would, it was thought, keep alive the hope 
of further aid, and induce Congress to yield and 
grant what she so earnestly desired, — the back 
country, and particularly the control of the Missis- 
sippi from its source onward to the ocean. 



MISSION TO SPAIN. 139 

Ere this diplomatic skirmishing took place, England 
had realized her inability to reduce the Americans to 
obedience when supported by the two European pow- 
ers, and, accordingly, sent Cumberland, the drama- 
tist, to Madrid, to persuade the premier that Spain's 
interests would not be subserved by the independ- 
ence of the States ; that this once established, their 
citizens would open a contraband trade with her 
colonies, and, if necessary for the purpose, make war 
alike upon Portuguese and Spanish settlements, rav- 
aging their coasts, and destroying their commerce 
and shipping. He therefore proposed that the dis- 
pute between Britain and America should be adjusted 
upon equitable principles ; that the four European 
powers having colonies should guarantee each other 
their possessions, which were not to become involved 
when hostilities arose between the parent States. 
As an inducement to enter this grand Confederation, 
the three others were to be allowed to participate in 
England's colonial trade without conceding the same 
privilege in return. Spain was too wary to be en- 
trapped by this proposal, and, though she coquetted 
with other advances of a similar nature from Sir 
William Jones and others, remained faithful to her 
engagements with France. 

Numbers of bills of exchange for small sums contin- 
ued to arrive from time to time, which Jay accepted, 
relying upon the promise of the government to pay 



140 THE LIFE AND TIMES OF JOHN JAY. 

at maturity. After his first conference with the 
count, he had advised Congress, that, if they would 
only adhere to their determination respecting the 
river and western boundaries, he thought his Catholic 
majesty might be willing to adjust those questions in 
a satisfactory manner ; and, in conformity with his 
suggestions, they had reiterated the decisive instruc- 
tions already given him. The authorities, in their 
intercourse with the envoy, had been careful to guard 
against any acknowledgment of his country's inde- 
pendence, and, in order to satisfy themselves as to 
his having received further powers authorizing him 
to yield the points at issue, sent an agent to sound 
him on the subject, whose unfavorable report deter- 
mined them to limit their aid to the extent already 
agreed upon, though other and further drafts had 
been honored with the minister's knowledge and 
approbation. An emergency was thus precipitated. 
Under Morris's skilful administration of the Ameri- 
can finances, the credit of the country was just 
reviving at home ; and as it was of the greatest 
moment that it should be fostered and preserved. 
Jay's sense of duty led him to form the bold resolu- 
tion of staking name, character, and fortune, and, 
accepting all future bills, trusting to chance for 
their ultimate payment. By doing this, he assumed 
a personal liability for their liquidation ; but the 
shipwreck of the newly established financial system 



MISSION TO SPAIN. 141 

might thus be prevented, and would, under any 
circumstances, be deferred for many months. 

Before October his responsibiHty had reached the 
sum of ^50,000. When the time for payment had 
nearly arrived, and Spain declined to render any 
further assistance, he called upon France without 
effect. Franklin, at Paris, equally patriotic, though 
weighed down with engagements, came to his relief 
with one-half the requisite amount, and thus ena- 
bled him to meet the first maturing drafts. This 
strengthened him in his resolve to accept all that 
should be presented in the future, and in consequence 
he soon became bound for more than ^100,000. 
Finding him inflexible, the Spanish Government re- 
laxed, and agreed to make further advances, amount- 
ing in all to ^150,000. Congress for the time ceased 
drawing bills ; and a crisis was happily passed, which 
displayed in a most striking manner the decision, 
patriotism, and firmness of the ambassador, as rising 
superior to all personal considerations. 

Though unpleasantly situated, he felt the impor- 
tance of appearing to the world to have a good 
understanding with the authorities, and followed the 
king to St. Ildefonso and Aranjuez. He was not, 
however, presented at court, and, in consequence, 
not recognized in "society." His wife lived a re- 
tired life, occupied with the care of a daughter, 
born during their sojourn at the capital. When 



142 THE LIFE AND TIMES OF JOHN JAY. 

about leaving home, the widow of Gen. Montgomery 
had written of her, " She is very handsome, which 
will secure her a welcome, while her understand- 
ing will gain her the hearts of the most worthy : her 
manners will do honor to our country-women, and will 
please, even at the court of Madrid." Their position 
afforded no opportunity of displaying the charms of 
her person, mind, or manners, except to a limited 
number of friends, who fully appreciated what was 
debarred the court-circles. 

Jay's letters from home, though infrequent and 
long delayed, had brought the news of Arnold's 
defection, and the disastrous defeat of Gates at 
Camden, which with Spain's evident indisposition 
to negotiate, the intrigues of English agents at 
Madrid, and the necessity he was under of providing 
funds to meet his acceptances, made his isolated 
situation peculiarly embarrassing, and difficult to 
sustain with composure. The past few months had 
been full of heavy responsibilities, and consequent 
solicitude. Upon going abroad, he had left behind 
his only child, a boy of three years. Anxiety of 
mind, combined with the unhealthy climate of Ma- 
drid, had told upon the health of both parents ; and 
they were now called upon to suffer the loss of the 
infant that promised so much happiness in their 
quiet domestic life. Mrs. Jay wrote home, "Vain 
are my efforts to divert my thoughts from grief. 



MISSION TO SPAIN. 143 

while my heart is still under its influence for the 
loss of a lovely little daughter ; but private afflictions 
must give place to public calamities." She said at 
another time, " Incited by his [Jay's] amiable exam- 
ple, in all our perils, I gave fear to the winds, and 
cheerfully resigned myself to the disposal of the 
Almighty." 

The difficulties of the envoy's position were to be 
increased by the action of Congress. Early in July, 
1 78 1, the count placed in his hands a despatch from 
home, which bore evidence of having been opened, 
instructing him to recede from the demand for the 
joint navigation of the Mississippi, and expressing a 
hope that this concession on the part of America 
would result in a treaty with Spain, and further 
pecuniary assistance from her. This course had 
been determined on early in February ; but the 
letter announcing the resolution had doubtless been 
held back by the Spanish authorities, who were 
familiar with its contents. The Southern States, 
with a proper regard to the future development of 
the country, had heretofore strenuously insisted 
upon the free use of the river ; but now, at the 
suggestion of Virginia, this attitude was abandoned 
by all, North and South, except North Carolina, 
Massachusetts, and Connecticut, the vote of New 
York being equally divided. Jay, as we have seen, 
had recommended that Congress should adhere 



144 THE LIFE AND TIMES OF JOHN JAY. 

firmly to the stand they had taken before he left 
home. 

They had of late reiterated their former instruc- 
tion, saying, " If the right of navigation to and from 
the sea cannot be obtained, it is not on the part of 
America to be extinguished." What had caused 
this sudden change of front ? It can only be ac- 
counted for by some outside influence. We know 
that from the beginning, France had been desirous 
that the United States should recede from the West- 
ern claims in order to conciliate Spain, and that her 
new minister at Philadelphia had intrigued with 
Congress, endeavoring to mould them to the promo- 
tion of certain interests of his country, regardless 
of those of the nation to which he was accredited. 
It is further known that his secretary, Marbois, held 
intimate relations with a distinguished gentleman 
of Virginia ; and a later generation put these facts 
together, and drew the inference, that, through the 
latter's agency, French contrivance had wrought this 
alteration in America's position on the Mississippi 
question. There is no means of learning how far 
such surmises were correct. In the phraseology of 
the journal, "The delegates from Virginia, in pur- 
suance of instructions from their constituents, pro- 
posed to recede from the free navigation below 
thirty-one degrees." What moved her Legislature to 
issue such instructions .-' Were the members from 



MISSION TO SPAIN. 145 

any other Southern State likewise directed to aban- 
don a peculiarly American principle, — that nations 
bordering on a stream possess the unrestricted right 
of navigating it to the ocean ? 

Jay was naturally mortified at having to withdraw 
from the ground he had assumed, and his annoy- 
ance was increased by knowing that his antagonist 
was acquainted with these instructions. He, how- 
ever, with a good grace, entered upon the distasteful 
task, and in proposing a treaty to Florida Blanca, 
in accordance therewith, stipulated upon his own 
responsibility, that, if the terms were not adjusted 
before the settlement of a general peace, the pro- 
posed relinquishment should not be binding upon 
his country. The eyes of all Europe were at the 
time fixed upon the pyrotechnic display at Gibraltar, 
and the advances on the part of the American 
diplomatist proved fruitless. 

In truth, the negotiation of a treaty was never 
seriously commenced, and the difficulties arising 
would have utterly discouraged any other than a 
most devoted patriot, Spain was cold, haughty, and 
repellent, realizing, that, were independence once 
admitted, no special advantages could be obtained 
without an equivalent return. She may, too, have 
thought that such an acknowledgment would compli- 
cate her prospective negotiation with England. All 
Jay's energy and diplomatic skill failed to overcome 



146 THE LIFE AND TIMES OF JOHN JAY. 

Spanish inertia, and the settled determination of the 
government to wring from the distress of his coun- 
try an abandonment of all her rights at the West, 
in return for recognition and pecuniary assistance. 

The situation was indeed anomalous. Spain's 
colonial policy had always been arbitrary and exact- 
ing. With her own possessions held in strict sub- 
jection, she was asked to aid those of another power 
in revolt. An absolute monarch was solicited to ally 
himself with a democratic republic, whose religion 
and language were foreign to his own. A country 
where freedom of thought was repressed, was ex- 
pected to symjDathize with one breaking away from 
all traditions of the past. His most Catholic majesty 
was called upon to support a Congress whose prede- 
cessors had protested against enlarged liberty to per- 
sons of his own faith, and admittance was sought to 
the most haughty and exclusive court in Europe by 
a simple untitled gentleman from the wilds of 
America. It was fortunate for both countries that 
self-seeking, a lack of sound policy, and wise states- 
manship, on the part of Spain caused her to decline 
the American overtures. She might as well have 
attempted to dam the great Father of Waters as to 
stay the onward march of the Anglo-Saxon toward 
the Gulf. Yet none but the Omniscient could then 
foresee that within half a century she would be di- 
vested of every foot of territory bordering on its 



MISSION TO SPAIN. 147 

waters, and that from the southern cape of Florida 
to the Peninsula of Yucatan no Spanish official 
would be found. 

Jay's correspondence with Florida Blanca, while 
creditable, betrays the suffering condition of the 
United States in the dark midnight of the Revolution, 
and the great importance attached to a Spanish 
alliance. It is marked throughout by uniform pru- 
dence and elevated patriotism ; and, while it indicates 
in the beginning some natural trepidation, his ability, 
tact, and earnest frankness show him in diplomacy 
quite an equal of the astute and artful premier of 
Charles III. 

The same vessel that brought his latest instruc- 
tions, also brought the announcement of his appoint- 
ment as one of the commission to negotiate a treaty 
of peace with Great Britain ; and, being summoned 
by Franklin, he soon left for the French capital. 
When Florida Blanca became satisfied that Great 
Britain seriously contemplated a general settlement, 
he feared that he had overreached himself, and grew 
more conciliatory in his bearing. He had fallen into 
the mistake of not following up America's proposal, 
by doing which, even if an adjustment of the claims of 
the two countries could not have been had, he would, 
at least, have learned the exact extent of her conces- 
sion, and could then have determined upon his future 
course. 



148 THE LIFE AND TIMES OF JOHN JAY. 

Jay, on his part, congratulated himself that the 
impolitic offer made through him to yield the navi- 
gation of the Mississippi had not been embraced ; 
and that, while tendering this in obedience to his 
instructions, he had restricted its acceptance to a 
period that now seemed nearly past. He thought, 
also, that it was unwise for a young and growing 
republic like the United States to ally itself with an 
old and decrepit monarchy that had steadily declined 
its proffered friendship, and refused to enter into any 
engagements in the day of trial. He left Madrid 
without regret, disgusted with the prime minister for 
his chicane and duplicity, and for the extreme em- 
barrassment and mortification caused by the non-ful- 
filment of pledges for the payment of his acceptances. 
Besides these personal grievances, he felt that little 
gratitude was due Spain for her pecuniary aid. She 
had acted in an unfriendly manner by permitting 
British troops, which had surrendered at Pensacola 
and the Bahamas, to be transported to New York, 
thereby strengthening its garrison, instead of stipu- 
lating to have them sent to Europe. 

Before leaving Madrid, Jay was notified by Florida 
Blanca that D'Aranda, the Spanish minister at Paris, 
had been authorized to continue the incipient nego- 
tiation, and, a few days after his arrival at the French 
capital, placed himself in communication with that 
important personage. In an early interview he ex- 



MISSION TO SPAIN. 149 

hibited his commission to treat; but, though D'Aranda 
claimed to have full powers, he failed to produce them. 
The simple assertion on his part was not satisfactory 
to the American, who declined proceeding further 
unless assured by their exhibition that his adversary 
possessed like powers with his own. 

Jay was a man of simple habits, and indifferent to 
outward forms ; yet when abroad, representing a 
country whose position was not definitely established, 
he required for it the very highest respect and con- 
sideration. When the alliance between France and 
the United States was formed, Gerard had not shown 
his commission to Franklin until the close of the 
negotiation ; and D'Aranda, unwilling to recognize 
their independence, now assumed the same ground, 
overlooking the obvious difference in the situation. 
The struggling colonies were then soliciting the 
assistance of a powerful nation, and it was not for 
them to stand upon a question of punctiHo. France 
at that time was at peace with England, and had the 
right to determine the manner in which she would 
embark in the contest. Spain, on the contrary, was 
now engaged in the war. The freedom of America 
was assured. She had demonstrated her ability to 
maintain independence, and consequently demanded 
admittance into the sisterhood of nations on a footing 
of equality. When adjusting her American treaty, 
France had met the colonial advances in a liberal 



150 THE LIFE AND TIMES OF JOHN JAY. 

spirit ; while Spain, on the other hand, had refused 
any recognition, and baffled every effort to induce 
her to join the common alliance, hoping to secure her 
own selfish objects. The policy she pursued was to 
encourage resistance by doling out scant supplies, 
but to decline granting any effective aid, even against 
her own enemy. 

When Jay went to Madrid, it was intimated to him 
that the navigation of the Mississippi was the main 
obstacle to negotiation. Territorial pretensions soon 
followed, until at last he was notified that all ques- 
tions between the countries could be more satisfac- 
torily settled at the general peace. In view of the 
negotiation with England, it had become expedient 
for Florida Blanca to officially learn the full extent of 
America's claims. This could have been ascertained 
at Madrid as well as at Paris ; but he feared that 
treating with that country would clothe her with the 
rights of an independent power, and hence desired 
in an indirect way to obtain the necessary informa- 
tion. Though advised by Vergennes, the Foreign 
Secretary of France, that D'Aranda's commission as 
ambassador was sufficient. Jay remained firm. Ray- 
neval, chief clerk in the Foreign Department, took 
the matter in hand, and, unsolicited, furnished him 
with an elaborate and carefully prepared memorial, 
contravening the demands of the United States, and, 
by way of a compromise, suggested new boundaries 



MISSION TO SPAIxY. 151 

between them and Spain. Even this formidable 
document failed to draw him into any discussion of 
the subject unless D'Aranda's full powers should 
first have been exhibited. 

The time thus passed away, the settlement with 
England proceeding in the mean while. Near the 
close of the year, Jay wrote home, " Our negotiations 
with Spain are at a stand-still. Count D'Aranda 
either has not, or does not choose to show me, the 
commission to treat." After the preliminaries be- 
tween the United States and England had been ad' 
justed, the Spanish authorities were prepared to 
recognize the independence of the former ; and he 
was invited to return to Madrid, and there settle the 
question at issue. This he contemplated doing, but 
his health forbade ; and further negotiation between 
the countries was therefore transferred to America, 
to perplex and annoy her statesmen for many years 
to come. 



152 THE LIFE AND TIMES OF JOHN JAY. 



XIL 

THE TREATY OF PEACE. 

THE correspondence of Lord North with his sove- 
reign shows that he had long despaired of success 
in conquering America. His indolent disposition and 
mistaken sense of duty, however, caused him to yield 
to the urgent entreaties of a stubborn master, that 
he should retain office, and continue hostilities, with- 
out a specific purpose. The attempt to subjugate 
the colonies had, in the beginning, received the cor- 
dial approval of the people of England ; but the entry, 
first of France, and then of Spain, upon the stage, 
along with the heavy burdens laid ujDon their shoul- 
ders, turned the current of feeling. The supporters 
of the ministry in Parliament steadily declined in 
number after its corruption at home, the impolicy 
of its proceedings, and the inefficiency of the military 
operations, had been laid bare. The surrender at 
Yorktown carried dismay into the cabinet, and noth- 
ing but the king's tenacity prevented then an aban- 
donment of the contest. 

The opposition to ministerial measures in the Su- 



THE TREATY OF PEACE. 153 

preme Legislature was comjDOsed of two divisions. 
In the one, led by the Marquis of Rockingham, were 
Fox, Burke, and other Liberal statesmen. These 
advocated a general peace, conceding independence, 
if necessary, as a prerequisite. The other embraced 
the old followers of Chatham, now enlisted under the 
Earl of Shelburne, supported by Dunning, Barre, and 
Camden, who, while favoring a general settlement 
among the belligerents, were yet unwilling to yield 
all control over their former colonies. 

When the new Parliament assembled, it numbered 
Pitt and Sheridan among its members ; and the cam- 
paign against the ministry was opened with great 
vigor by Fox and his adherents in one House, and 
Shelburne and Rockingham in the other — North, 
almost unaided, gallantly facing the powerful oppo- 
sition. On Feb. 22, 1782, Conway moved in the 
Commons that the effort to reduce America to 
obedience should be abandoned ; and so greatly had 
the ministerial majority decreased, that the resolu- 
tion was lost by a single vote. The opposition, 
inspired by the prospect of ultimate success, became 
more aggressive in the impeachment of the ministry, 
and more offensive in allusion to the sovereign. The 
end soon came. In less than a month a motion 
expressing a want of confidence in the government 
was prepared, and would have passed the Commons 
but for the precipitate resignation of the cabinet. 



154 THE LIFE AND TIMES OF JOHN JAY. 

In the temper of the country, it was evident that no 
Tory ministry could be established ; and the king 
was therefore compelled to summon to his assistance 
men who had early opposed taxation of the colonies, 
with those who had denounced the war upon them 
as unjust, and waged for an unholy object. Among 
the latter were some not only pledged to their 
independence, but who in debate had rendered them- 
selves obnoxious to his majesty. He was not dis- 
posed to overlook any want of respect. He had 
hoped, in the commencement of "his reign, to turn 
back the wheels of progress, reclaim authority 
wrested from his ancestors, and give his govern- 
ment a more personal character. Thwarted at home, 
his attention had been turned to America. His 
pride was therefore involved, and his feelings as a 
man permitted to interfere with his duties as a con- 
stitutional sovereign. When thus necessitated to 
change his advisers, he declared the day was a fatal 
one, and, rather than submit to what he termed Whig 
dictation, was prepared to abandon the kingdom, and 
seek refuge in the quiet of his electoral dominions. 
Independence, if wrung from him, would be grudg- 
ingly conceded. 

The very magnitude of their victory prevented the 
Whigs from reaping its full fruition. The king felt 
humiliated, and still clung to the idea of subduing his 
late colonies. He tried at first to strengthen North's 



THE TREATY OF PEACE. 155 

administration by admitting some of the opposition 
leaders, and had authorized the chancellor to see 
Rockingham for the purpose ; but that nobleman 
made independence a sine qua non, and the plan was 
consequently frustrated. After North's resignation 
had been accepted, he compelled him to remain in of- 
fice until a new cabinet could be organized, embodying 
the seeds of an early dissolution. He refused to see 
Rockingham, its future chief, until the appointments 
should have been settled, and carried on all further 
negotiations through Shelburne, though assured by 
him that he — Shelburne — was not necessary to 
Rockingham. Thus the door was left wide open for 
duplicity on the one side, and misapprehension on the 
other. After vainly trying to bargain with each wing 
of the party, the king found himself compelled to form 
such a ministry as would be acceptable to the House. 
In the new arrangements, Rockingham was placed 
at the head of affairs, with Shelburne and Fox as 
joint secretaries of state. Thurlow, the bete noir of 
the administration, in deference to the king's wishes, 
was continued as chancellor. Pitt, with instinctive 
sagacity, declined to take office, saying he would ac- 
cept no inferior place. The subordinate positions in 
the government were parcelled out to the followers 
of the respective chiefs. The equality with which 
this was done indicated an alliance rather than a 
blending of the sections, and that each had its own 



156 THE LIFE AND TIMES OF JOHN JAY. 

advantage quite as much at heart as that of the coun- 
try. Rockingham was amiable, and possessed an 
unblemished character ; but his moderate abilities and 
constitutional diffidence unfitted him for the duties 
he had assumed. His name is associated with the 
repeal of the Stamp Act, and his reputation as a good 
man and pure statesman embalmed in Burke's gor- 
geous rhetoric. Shelburne was aspiring, unpopular, 
and was accused of insincerity. He had been in 
office with Chatham, and had devoted considerable 
attention to the subjects of finance and diplomacy ; 
but his limited knowledge of human nature rendered 
him a fit tool for an intriguing monarch and an un- 
scrupulous chancellor. The construction of the 
cabinet was, in truth, a masterpiece of regal skill, and 
was aptly described by Fox as half Whig and half 
royal. As was to be anticipated from its composi- 
tion, distrust soon sprang up ; and at times the 
members came near breaking into open hostility. 
Shelburne and the chancellor, it was known, had 
the ear of the king ; the former was one of the 
opposition least offensive to him ; the latter, his con- 
fidant, was prepared at any time to aid him in over- 
throwing the obnoxious ministry, and was more than 
suspected of double-dealing. 

The late Tory administration had been unable to 
settle the American question, and the present Libe- 
ral one could not do otherwise than endeavor to ac- 



THE TREATY OF PEACE. 157 

complish that much-desired object. Each belHgerent 
had heretofore been tampered with to treat separately, 
but a common interest held them firm to their pur- 
pose to negotiate only for a general pacification. 
Soon after Conway offered his resolution in the Com- 
mons, a friend of Shelburne's, when returning to Eng- 
land from Italy, called upon Franklin, who at his 
request gave him a letter to that nobleman, congratu- 
lating him upon the returning good spirit manifested 
in Parliament, After he became secretary of state, 
Shelburne replied, introducing semi-officially Mr, 
Oswald, who bore also recommendations from Henry 
Laurens, then a prisoner in London. Thus, in the 
beginning, the negotiation unfortunately fell into 
the hands of the secretary least willing to accord 
entire independence to the Americans. All parties, 
however, being desirous of an adjustment of the 
difficulties, the present opening was assiduously 
worked with a view to peace, Oswald passing repeat- 
edly between London and Paris, determining the 
place and time of meeting for a settlement. These 
preparatory arrangements were made with the full 
concurrence of the British cabinet ; but, the business 
having now assumed a definite shape, it became 
necessary that a more formal character should be 
given to it. 

In the division of the oflfices, Fox had been assigned 
that of foreign secretary of state ; while Shelburne 



158 THE LIFE AND TIMES OF JOHN JAY. 

was made secretary of state for the colonies. It 
thus happened that the beginning of the negotiation 
with America properly fell under the latter's super- 
vision. When, however, she was to be treated with 
as a foreign nation, and the proposed adjustment 
was to be for a general peace, it was obvious that it 
should rest in the hands of Fox. That gentleman, 
who had been a little impatient of what seemed his 
associate's intrusion in the matter, now gladly as- 
sumed its charge, and, with the approval of the 
cabinet, appointed Thomas Grenville minister pleni- 
potentiary, who accordingly made his appearance at 
the French capital in the early part of May. Oswald 
had arrived from London four days before ; and, 
though his duties were limited to arranging the 
preliminaries for a conference, his conduct was such 
that a shrewd statesman like Franklin did not fail 
to discover that two adverse interests were at work 
in the English cabinet. When Grenville's commis- 
sion reached Paris, it was found to authorize him to 
negotiate only with France, the enabling Act to treat 
with America not having as yet passed the great 
seal. Further powers were, therefore, requisite be- 
fore proceeding ; and while waiting for these, and 
the arrival of Jay, he assured Franklin that America 
would be acknowledged as independent, but that, at 
the same time, she must be truly so, and have "no 
secret, tacit, or ostensible connection with France." 



THE TREATY OF PEACE. 159 

Shelburne had unwillingly surrendered the man- 
agement of a treaty which he fancied he had auspi- 
ciously inaugurated. Oswald's apparent duties had 
already been performed ; yet his patron, with the 
king's concurrence, contrived to have him remain 
at Paris until ordered to return home. During an 
early interview, the doctor had suggested to him the 
policy of Great Britain's ceding to the United States 
the entire Province of Canada, and, at his request, 
had loaned him, for the prime minister's perusal, a 
paper embodying some views on the subject. Oswald 
subsequently gave him reason to believe that this 
plan was favorably entertained ; though, as it turned 
out, it had never been submitted to the Cabinet. ; 
He exhibited a memorandum of the earl's respecting 
the terms of peace, and, speaking as one having 
authority, impressed Franklin as a man of simplicity 
and honesty. The latter wrote, " Grenville seems to 
think the whole negotiation committed to him, and 
to have no idea of Oswald's being concerned in 
it. I apprehend difficulties if both are employed." 
Such soon arose. 

Shelburne had written to Franklin that he was 
willing to invest his agent with any commission that 
they two, after conferring, should deem proper ; and, 
since the doctor preferred to negotiate with Oswald, 
Grenville, to his chagrin, soon discovered, on the 
part of the American, an indisposition to meet his 



l6o THE LIFE AND TIMES OF JOHN JAY. 

advances. No wonder that the worthy doctor was 
perplexed at the cross-purposes of England's repre- 
sentatives, and inclined, at times, to doubt the sin- 
cerity of both. Grenville grew suspicious of Oswald's 
tampering with the negotiation ; and, the clew once 
obtained, what was termed "this duplicity of con- 
duct " on the part of Shelburne was laid bare. Fox 
was disconcerted and annoyed at what he deemed 
the treachery of his associate, but, as the chief of 
the cabinet was then on his death-bed, found himself 
unable to apply any corrective. The second commis- 
sion sent to Grenville authorized him to treat with 
the King of France, "and any other Prince or State." 
Franklin objected to this form, as it could not be 
supposed to include a people who were not yet rec- 
ognized by England as "a State." Upon being 
advised of this barrier to the negotiation, Fox, of a 
frank and open nature, wrote to his envoy, " I hope 
you will hear from us again very soon, with authority 
to offer independence as unconditional as you could 
wish." To carry out this desire, he proposed to the 
cabinet that he should be authorized to prepare 
the necessary instructions ; but, in the absence of 
Rockingham, this was refused. That nobleman died 
the following day, after holding office little more than 
three months. His death rendered a re-organization 
of the cabinet necessary ; and Shelburne, whose con- 
duct as minister, if not inspired by the king, had yet 



THE TREATY OF PEACE. l6l 

received his approval, was placed at the head of the 
new administration.-- He agreed with his master, 
that as little as possible was to be conceded ; over- 
looking the essential fact that independence was 
already achieved, and that they were chaffering as 
though an acknowledgment of an existing thing 
would be fatal to the minister's political existence. 
How far they succeeded in gaining their ends, 
remains to be related. 

When the consideration of further instructions to 
those who were to treat for peace came before the 
Continental Congress, a committee was appointed 
for their preparation. They turned out to be sub- 
stantially those of Morris, already adopted, except 
as modified by the French ambassador, who was con- 
sulted as to the proper basis of settlement. The 
commissioners were ordered "to undertake nothing 
without the knowledge and concurrence " of the 
French cabinet. As, however, their allies wished 
to control the negotiation, and not simply to concur 
in what the respective ministers might decide upon, 
a further evidence of submissiveness was demanded. 
At Lucerne's suggestion, another sentence was added, 
" and will ultimately govern yourself by their advice 
and opinion," thus subjecting them to French dicta- 
tion, and making the king master of the terms of 
peace. Massachusetts, before the war, had been 
extensively engaged in the Newfoundland fisheries ; 



1 62 THE LIFE AND TIMES OF JOHN JAY. 

and, fearing that this interest might be sacrificed, 
she required her delegates to insist upon its being 
secured in the proposed treaty. Congress, there- 
fore, directed Frankhn to inform his most Christian 
majesty that they were determined not to depart 
from their previous resolution, "by which all the 
objects of their desires and expectations were even- 
tually submitted to his counsel ; " but, to satisfy the 
New-England States, it was requested that a share 
in the fisheries should have a place among these 
"desires." It was further resolved that this was not 
to be given up without the concurrence of all the 
States. We shall see later how France betrayed 
the confidence thus reposed. The instructions, as 
" improved," placed the American commission en- 
tirely in her hands, save in one point, — which proved 
the most important, — they were, under no circum- 
stances, to yield the question of a direct acknowledg- 
ment of independence by Great Britain. The mode 
of doing this was left to their discretion as influenced 
by the condition of affairs at the time of the nego- 
tiation. 

When his appointment as a peace commissioner 
reached Jay at Madrid, accompanied by these instruc- 
tions, he earnestly protested against the requirement 
"to be absolutely governed by the advice and opinion 
of the servants of another sovereign," and entreated 
Congress to release him from a station where he 



THE TREATY OF PEACE. 163 

"must receive the directions of those on whom no 
American minister should be dependent." However 
much the members may have been affected by his 
patriotic sentiments, or have deplored their blindness 
in permitting French intrigues to place their com- 
missioner in a position of subserviency, they were 
yet unable to recede without causing offence, so 
quietly ignored Jay's request to be relieved. He 
therefore, in response to Franklin's summons, reached 
Paris, June 23, 1782, prepared to participate in the 
approaching settlement. On Aug. 7, Oswald wrote, 
after an interview with him, " He is a man of good 
sense, of frank, easy, and polite manners. Although 
he has lived till now an English subject, he may be 
supposed as much alienated from any particular 
regard for England as if he had never heard of it in 
his life. I sincerely trust I may be mistaken ; but I 
think it proper to make the remark, as Mr. Jay is Dr. 
Franklin's only colleague, and being a much younger 
man, and bred to the law, will, of course, have a great 
share of the business assigned to his care." 

Grenville had been even more annoyed and dis- 
gusted than Fox at Shelburne's management, and 
withdrew from the stage against the wishes of the 
ministry, and the earnest protest of his brother. Lord 
Temple. The new cabinet being installed, Fitzher- 
bert was appointed on the part of England to adjust 
matters with the other powers, and Oswald author- 



1 64 THE LIF?: AXD TIMES OF JOHX J A V. 

ized to treat for peace with the agents of "the 
thirteen colonies or plantations" as soon as his cre- 
dentials should have been prepared. Jay, alive, as 
usual, to the dignity of the country he represented, 
objected to negotiating with him on these terms; but 
as he and Franklin were required to be governed by 
the advice of the French ministry, they waited upon 
its chief to obtain his opinion before the document 
in question should have reached Paris. Vergennes, 
in the interview which followed, decided in favor of 
their proceeding under the expected power ; care, he 
said, being taken, after the adjustment had been 
made, to insert an article securing independence. 
He thought that England's recognition, instead of 
preceding, should, as a logical consequence, follow, 
the treaty, and offered a variety of reasons in sup- 
port of this view, enforced by the examples of 
Holland and other countries. This satisfied Frank- 
lin, who, being appealed to, said that the proposed 
commission to Oswald "would do." He had always 
received the utmost kindness and personal considera- 
tion from the court at Versailles, and was accustomed 
to consult its minister on all occasions of doubt. 
Hence, while entirely loyal to his country, and desir- 
ous of promoting her welfare, he was inclined to 
close his eyes to a danger which Jay, perhaps, mag- 
nified, owing to the belief that the failure of his 
Spanish mission was largely due to French intrigues. 



THE TREATY OF PEACE. 165 

He feared, that, unless the United States were first 
placed in a position of independence, the war might 
be prolonged for other interests, but, this once con- 
ceded in the commission, Great Britain would be 
precluded from further claims to sovereignty, and 
America at liberty to treat with other nations, even 
should the present negotiation fail of its purpose. 
Her independence admitted, and her other conditions 
accepted, duty would not require her to continue the 
war for the attainment of Spanish objects. He 
thought that France did not wish her to be recog- 
nized without having first used her as an instrument 
to bring Spain to moderate terms of settlement. In 
no other way could he account for advice so opposed 
to the dignity of his country, sustained as it was by 
arguments which Vergennes himself had too much 
understanding not to perceive to be entirely falla- 
cious. In a second interview, the French premier 
gave the same grounds for entering upon the nego- 
tiation, and notified the commissioners that the pleni- 
potentiaries of the other powers were awaiting their 
action. Convinced of the wisdom of his own course, 
Jay declared that America needed no validity from 
Great Britain to make her independence effective, 
and that, provided the latter would treat with her on 
the same footing of equality as with other nations, he 
would rest satisfied. 

His situation had become one of great delicacy. 



1 66 THE LIFE AND TIMES OF JOHN JAY. 

He was engaged in a negotiation heretofore managed 
solely by a person in whose integrity, judgment, and 
patriotism he had always had implicit confidence ; 
but he saw that Franklin was swayed by the French 
minister, and disposed to listen to advice which to 
him seemed fraught with injurious consequences. 
On reflection, he became more and more confirmed 
in the belief that France wished to exercise to the 
fullest extent that control over the proposed treaty 
with which Congress had unwisely vested her, and 
that she intended, if possible, to stay an explicit 
acknowledgment of independence until her own ends 
should have been attained. Two of his associates 
on the commission were yet to arrive, and there was 
no one in Paris of whom he could seek counsel. His 
youth inclined him to defer to his older colleague, 
whose knowledge of mankind, and long experience in 
diplomacy, entitled him to the greatest respect. Be- 
sides, the instructions required that the French min- 
ister should be consulted, and his advice followed ; 
but his expressed opinion was decidedly adverse to 
the conclusion that Jay had reached. 

His suspicion of ulterior designs was strengthened 
by the information that the count had taken pains 
to notify the court of St. James that Jie deemed 
Oswald's commission to be all-sufificient. About the 
same time that this news reached him, there was 
placed in his hands an intercepted despatch from a 



THE TREATY OF PEACE. 1 6/ 

French representative at Philadelphia, written while 
the preparation of the later instructions were still 
before Congress, recommending to France a policy 
on the fishery question inconsistent with a cordial 
alliance of the two nations. Believing that no agent 
would dare express views which did not conform to 
those of his court, Jay resolved to guard against 
the machinations of Vergennes, by positively declin- 
ing to negotiate with England, except upon equal 
terms. He therefore urged on Oswald his inability 
to treat on any other condition, pointed out that it 
was of advantage to Britain that her late colonies 
should be free from the control of France, as they 
were determined to be from the mother country, and 
declared that he would have no concern in any nego- 
tiation in which they were not dealt with as an inde- 
pendent power. As he asserted, the United States, 
under the credentials that Oswald was to receive, 
could not be considered as such before the conclusion 
of the treaty, and, until that time, must be regarded 
as colonies. Convinced by his reasoning, and satis- 
fied that he could not be moved from the position, 
the British agent despatched a messenger to London 
for the new commission which the two Americans 
had in conjunction prepared. 

After a hurried interview with D'Aranda, Ray- 
neval, the confidential assistant of Vergennes, se- 
cretly departed for the same place, with the purpose. 



1 68 THE LIFE AND TIMES OF JOHN JAY. 

as Jay supposed, of forwarding Spanish interests at 
the expense of American, of ascertaining if, in the 
proposed treaty, a division of the fisheries between 
England and France, to the exclusion of America, 
were practicable, and impressing upon the cabinet 
that it was not necessary to alter Oswald's creden- 
tials in the manner required. Whatever may have 
been Vergennes' object, his envoy failed of its 
accomplishment. On learning the departure of Ray- 
neval, Jay at once despatched Vaughn to London, to 
counteract his proceedings, and to assure the Gov- 
ernment that the first step to making friends of 
those it could not subdue, was to inspire confidence 
by treating with them on an equal footing. The 
moment was critical, and immediate peace was essen- 
tial for the preservation of the ministry. Ireland 
threatened an outbreak ; and the earl had failed to 
draw to the support of his administration either Fox 
or North, those statesmen soon forming their un- 
natural and ill-starred coalition. Under these cir- 
cumstances, he reluctantly but gracefully yielded to 
the representations of Vaughn ; and his agent at 
Paris was thereupon authorized to treat with The 
United States of America, thus admitting their 
independence and an entire separation of the coun- 
tries. 

Less than three months before, Shelburne, when 
assuming office, had promised the king to oppose 



THE TREATY OE PEACE. l6c, 

recognition, and had recently declared in Parliament 
that it would cause the sun of England's glory to set 
forever. Yet he was now forced to submit to an 
overwhelming public sentiment. This point once 
conceded, he was not unwilling to grant liberal terms, 
hoping thereby to detach America from France. 

The new commission reached Oswald on Sept. 27 ; 
and, under it, negotiation soon commenced. The 
main difficulty having been overcome, the Newfound- 
land fisheries and the adjustment of the boundaries 
became the important American issues ; the debts 
due her subjects, and compensation for losses sus- 
tained by the Loyalists, those of Great Britain, 
Some trouble arose in arranging the boundaries, the 
British envoy insisting that the Ohio should be 
the western limit. To this suggestion, the commis- 
sioners, quotmg the king's charters, would not listen ; 
and the matter was finally settled by extending the 
territory of the United States to the Mississippi 
River. This left nothing to be desired at the West. 
During the discussion, an effort was made to restrict 
the American fisheries to narrow bounds. They had, 
before the war, given employment to large numbers ; 
and the project was resisted with great firmness and 
pertinacity. Adams, who arrived late in October, 
by his familiarity with the subject, proved a valuable 
coadjutor in sustaining the arguments of his associ- 
ates. He demanded a full participation in them, 



I70 THE LIFE AND TIMES OF JOHN JAY. 

asserting that the early voyagers had first discovered 
and used them, and that now, when a division of the 
empire was to be made, a share in all of them should 
belong to his country, and declared, that, if occupa- 
tion and possession, if war, blood, and treasure, gave 
such a right, America owned it. He pressed this 
view of the case with great ability ; and an agree- 
ment was at last reached, by which the right to take 
fish should continue to belong to the people of the 
United States wherever it had heretofore been exer- 
cised by them. The claim thus recognized was 
absolute and permanent, and not, like that of France, 
contingent upon treaty stipulations ' Great Britain, 

' The third article of the Treaty of Paris is as follows : " It is agreed 
that the people of the United States shall continue to enjoy unmolested the 
right to take fish of every kind on the Grand Bank and all the other banks of 
Newfoundland, and also in the Gulf of St. Lawrence, and at all other places 
in the sea, where the inhabitants of both countries used at any time heretofore 
to fish ; and also that the inhabitants of the United States shall have liberty 
to take fish of every kind on such part of the coast of Newfoundland as 
British fishermen shall use (but not to dry or cure the same on that island), 
and also on the coasts, bays, and creeks of all other of his Britannic Majesty's 
dominions in America ; and that the American fishermen shall have the liberty 
to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova 
Scotia, Magdalen Islands, and Labrador, so long as the same shall remain 
unsettled ; but, so soon as the same, or either of them, shall be settled, it 
shall not be lawful for the said fishermen to dry or cure fish at such settlement, 
without a previous agreement with the inhabitants, proprietors, or possessors 
of the ground." 

The above clause, establishing the absolute right of America to participate 
in all the fisheries, was evidently drawn by Adams. His son, thirty-six years 
later, while secretary of state, in a treaty then negotiated, permitted a change 



THE TREATY OF PEACE. I/I 

to her credit, persisted in requiring the restoration 
of property to the Loyalists ; but, as its confiscation 
had been decreed by the separate States, the com- 
missioners were debarred from acquiescing. Frankhn 
was, however, aroused, and read to Oswald the orders 
of the English generals in Carolina, not only confis- 
cating, but actually selling, the property of all patriots 
withm the State. The asperities engendered by the 
recent contest had not subsided ; and it was too well 
remembered that the advice of the Tories had in- 
duced the British Government to persevere in its 
coercive measures, for them to receive consideration 
at the hands of their countrymen. After all other 
questions had been adjusted, this came near wrecking 
the negotiation. The ministry feared to meet Parlia- 
ment without some provision having been made for 
this suffering class. At the last moment, when 
every expedient seemed to have been suggested to 
overcome the dilemma, the Americans proposed 
inserting an article recommending the several States 
to restore all confiscated property not already con 
demned ; and this salvo to England's honor was 
accepted by her plenipotentiary, with the concur- 
rence of Fitzherbert and Strachey, whom he had 
been directed to consult in matters of doubt. The 

in the phraseolog}', whereby, instead of a vested right, it became a concession 
on the part of England. This gave rise to the difEculties which have since 
ensued from time to time. 



172 THE LIFE AND TIMES OF JOHN JAY. 

debts of individuals incurred before the war were 
protected by a clause, that no lawful impediment to 
their collection should be interposed by either coun- 
try. Every thing being thus happily arranged, Jay, 
at Franklin's request, prepared the document for 
subscription. Vergennes said, when the treaty was 
submitted to him, that it had been purchased rather 
than made, and that Britain's concessions exceeded 
all that he could have believed possible. It was to 
become operative only upon the conclusion of a gen- 
eral peace, yet was signed at once ; the commission- 
ers, doubtless, wishing to close the door, and prevent 
the other powers, then negotiating, from bartering 
away the rights of their country. 

No treaty entered into by America has exercised a 
greater influence upon her future destiny. She ob- 
tained every thing she could rightfully claim. By it 
she broke through the barrier of the Alleghanies, and 
removed all obstacles to her onward march to impe- 
rial greatness. Gerard had written that ages would 
elapse before she could play a part in the world's 
affairs ; but D'Aranda, with truer political foresight, 
wrote to his sovereign, " The Federal Republic is 
born a pygmy. A day will come when it will be a 
giant." It was a mortal blow to the prev^ailing colo- 
nial monopoly, and established the right of every 
people to frame its own system of government. 
Great Britain made the old mistake of underrating 



THE TREATY OF PEACE. 173 

her progeny, and intrusted her interests to a former 
merchant and army-contractor, unversed in affairs of 
state. It was his fortune to encounter those, who, 
by their talents, zeal, and wisdom, were qualified to 
meet, in diplomacy, the most profound statesmen of 
Europe. The edifice which had been erected by 
Vergennes with so much labor and cunning strategy, 
failed of its purpose ; and, with the execution of the 
preliminaries, the United States became emancipated 
from French control on the one hand, as from Brit- 
ish authority on the other. As has been seen, the 
commissioners disobeyed the instructions of Con- 
gress, and proceeded without consulting Vergennes. 
Franklin, who had thought Jay misjudged the motives 
of that statesman, finally co-operated in preventing 
his country's welfare from being made subservient 
to that of another power. 

To Jay is to be assigned a very large share of the 
honor of securing this treaty. To his prescience in 
detecting the secret designs of Vergennes, his firm- 
ness in refusing to treat without a pre-acknowledg- 
ment of independence, the confidence with which he 
inspired Shelburne, and won him over to his views, 
America is in a great measure indebted for the vic- 
tory achieved over her recent ally, but then deter- 
mined opponent. He had written before to the 
secretary at home, " You will never see my name 
to a bad peace, nor one that does not leave us the 



174 THE LIFE AXD TIMES OF JOHN JAY. 

fisheries," and had carried out his intention of procur- 
ing honorable and satisfactory terms for his country. 
Fitzherbert, the British envoy, declared that it was 
solely through his means that the negotiation was 
brought to a successful termination, and wrote Shel- 
burne that he "always appeared to judge with much 
candor and consistency the true interest and policy 
of his country." Adams said that his was the prin- 
cipal merit, and that the title of "the Washington 
of negotiation " properly belonged to him. When 
the provisions became known, Hamilton wrote to 
him, "The people of New England talk of making 
you an annual fish-offering." More gratifying, how- 
ever, than other plaudits, was the greeting of his 
devoted wife. She had witnessed his labors, anxie- 
ties, and cares at both Madrid and Paris, and now 
wrote, " I congratulate you once more as a deliverer 
of our country, as well as an affectionate and ten- 
der husband." On the other hand, the secretary 
of foreign affairs, while approving the conditions, 
said, " I feel no little pain at the distrust manifested 
in the management of it, particularly in signing it 
without communicating it to the court of Versailles." 
It went no farther than settling the question of inde- 
pendence, arranging the boundaries, and adjusting 
the rights ©f the respective countries in the New- 
foundland fisheries. Had the commissioners tried 
to include other subjects, the negotiation would have 



THE TREATY OF PEACE. 175 

been indefinitely prolonged, and perhaps have proved 
a failure. They were therefore wisely deferred, to be 
embraced in a definitive treaty then contemplated, 
but which failed of accomplishing any thing more 
than the present one. 



176 THE LIFE AND TIMES OF JOHN JAY. 



XIII. 

FRENCH INTRIGUES. 

AS Jay's distrust of France at the time of the 
negotiation is thought by Sparks and other 
writers to have proceeded from "an unfounded jeal- 
ousy," and to reflect unjustly on a loyal and gen- 
erous ally, it is proper to review the circumstances, 
and see whether his discernment did not lead him to 
form a correct estimate of the intentions of her gov- 
ernment. He never at any time doubted its deter- 
mination to continue hostilities with England until 
she had relinquished her hold upon the colonies, but 
he believed that she favored the pretensions of Spain 
at the West at the expense of America, that she 
aimed to exclude the latter from any participation in 
the Newfoundland fisheries, that she intrigued to 
control the peace negotiations, and endeavored to 
keep back, for her own purposes, Britain's acknowl- 
edgment of independence. Let us see how far his 
judgment has been sustained by later revelations. 

Before an outbreak had actually occurred, the atten- 
tion of the French cabinet was drawn to the disturbed 



FRENCH INTRIGUES. 1 77 

condition of the colonies, and the question of extend- 
ing assistance thoroughly discussed. The king and 
Vergennes were favorable to this policy should the 
quarrel develop into hostilities. In the progress 
of events, an alliance had been formed for the 
assumed purpose of maintaining the sovereignty and 
independence of the States. While framing this 
treaty, France had in no wise tried to extort from 
their necessities any especial advantages for herself • 
and her subsequent contributions of men, material, 
and money were liberal, timely, and effective. As 
Vergennes wrote, " We have exacted nothing of the 
Americans which they cannot give in common to all 
the nations of Europe." 

While assenting to the general correctness of this 
statement, and admitting that she was entitled to the 
warm gratitude of America, we may fairly assume 
that the motives of France in forming the alliance 
were not altogether disinterested, but that she simply 
embraced the opportunity of reducing the power of 
an imperious rival, who had lately wrested extensive 
provinces from her. History teaches that the con- 
duct of nations is not regulated by the highest moral- 
ity, but that self-interest is the ordinary rule of action. 
It was hardly to be expected, that under the ancien 
regime, when a noble descent of four generations was 
essential to become an officer in her army, that 
France, possessing colonies of her own, would en- 



178 THE LIFE AND TIMES OF JOHN JAY. 

gage in hostilities for the benevolent purpose of aid- 
ing a community of republicans in arms against their 
sovereign. That she was impelled by her own ob- 
jects is clear from the king's declaration when allying 
himself with them. Replying to Britain's manifesto, 
he said that he embarked in the contest because his 
safety, the welfare of his people, invariable policy, 
and, above all, the secret projects of the court of 
London, imperatively laid him under the necessity. 
The "secret projects " alluded to, were North's efforts 
at conciliation and a peaceful re-union of the empire, 
which he inferred would menace France. Again, in 
the same document, he proceeds to say, that, in treat- 
ing with America, " it was with no other view than 
to put an end to the predominant power which Eng- 
land abused in every quarter of the globe." Ver- 
gennes' instructions to Gerard when starting on his 
mission, adds still another motive : he said " its per- 
manent union with France had been the king's 
object." 

Spain, as we have seen, claimed the entire control 
of the Mississippi, aspired to wrest Florida from Eng- 
land, and conquer and retain all lands lying west 
of the Ohio. This last she afterward insisted her 
troops had partially accomplished. France, by the 
treaty with Spain of April, 1779, had stipulated to 
conclude no peace without Gibraltar having been 
first restored ; and, we have reason to suppose, to 



FRENCH INTRIGUES. 179 

induce her to embark in the war, had also held out 
the hope of assistance in these other designs. The 
United States claimed jurisdiction to the Mississippi, 
and a joint right to its navigation above the thirty- 
ninth parallel. By the treaty of alliance, France had 
guaranteed the American territory, without defining 
its extent ; and her engagements with the two powers 
therefore necessarily conflicted. The political connec- 
tion between the cabinets of Versailles and Madrid 
had been intimate from the time that Louis XIV, 
placed his grandson upon the Spanish throne ; and 
in the present dilemma the former sided with Spain, 
probably supposing that honor and policy alike for- 
bade them deserting an old and tried friend in the in- 
terest of their new allies. When the instructions to 
the commissioners were being prepared, Gerard noti- 
fied Congress that the territory of the United States 
extended no farther west than the limit to which set- 
tlements had been permitted ; and when Jay reached 
Paris, Vergennes, after verbally and in writing deny- 
ing the justice of the American claims in that direc- 
tion, and advocating those of Spain, placed the matter 
in the hands of his confidential secretary, whose care- 
fully prepared memorial, contesting the rights of the 
United States, and his strenuous and officious efforts 
to press the negotiation with D'Aranda, attest that 
the minister was not at fault in the selection of his 
agent. Jay correctly supposed that the latter's pro- 



l80 THE LIFE AND TIMES OF JOHN JAY. 

ject for a new boundary had been inspired by his 
chief. Had America accepted his construction, she 
would thereby have been deprived of all territory 
north of the Ohio, together with parts of Kentucky, 
Tennessee, Alabama, and Mississippi. In short, from 
the preparation of the envoy's early instructions by 
Congress to the time of his leaving Europe to return 
home, there was, on the part of the French cabinet, 
an active, continuous, and frequently obtrusive sup- 
port of the Spanish pretensions against those of the 
United States. 

With respect to the Mississippi. Knowing the 
sentiments which prevailed at Versailles, Montmorin, 
the French ambassador, had early written to Ver- 
gennes from Madrid that "his most Christian majesty 
could not afford his Catholic majesty a greater proof 
of attachment than by employing his influence to 
divert their (America's) views from the navigation 
of the Mississippi." The influence sought was exer- 
cised. Gerard, who left the French Department of 
Foreign Affairs to become minister to the United 
States, informed Congress that their country had no 
right to its navigation, as she possessed no territory 
adjoining any part of it, and endeavored to obtain a 
sight of Jay's instructions when returning to Europe 
with him, but failing in this, tried to persuade him 
that the abandonment by his country of all claims to 
the use of the river for its entire length was requisite 



FRENCH INTRIGUES. l8l 

to a successful accomplishment of his mission. The 
premier wrote to Lucerne, his successor, " It behooves 
the Congress to be categorically explicit on this point, 
and to declare that the United States put forward no 
pretension on that score, i.e., the Mississippi, and will 
be content to request the gracious countenance of 
the king of Spain, as far as his interest will permit 
him to grant it." 

Looking upon the fisheries as a training-school for 
seamen, the courts of Versailles and St. James alike 
jealously guarded their respective rights therein. 
The American demand to participate in them was 
early known to Vergennes, who was not unwilling 
that an enterprising people, situated near by, should 
be precluded from making their country a naval 
power. He thus wrote to Lucerne, " Fishing along 
the coast of Newfoundland, Canada, etc., belongs ex- 
clusively to the English. The Americans have ab- 
solutely no claim thereto ; and if we do enjoy it in 
certain places, it is not in virtue of a common right, 
but of treaties which have expressly reserved us the 
privilege." When Jay's original instructions were 
prepared, this question possessed no immediate im- 
portance ; and Gerard, familiar with his recent course 
in Congress, and consequent unpopularity in the 
Eastern States, may have thought, that, when called 
upon to act, he would not heartily support their 
particular interest. The later directions to him, 



1 82 THE LIFE AND TIMES OF JOHN JAY. 

when being prepared, aroused that section of the 
country ; and after an earnest discussion, it was 
determined, as before stated, not to make the fish- 
eries an ultimatum in the approaching negotiation, 
but to form no treaty yielding the point without 
the consent of all the States. Marbois, the French 
cJiarge at Philadelphia, advised Vergennes to have 
the king " express his surprise at this assumption on 
the part of Congress " " that they set forth their pre- 
tensions without paying regard to the king's rights," 
and to declare "that their pretensions are not well 
founded." Rayneval, in Paris, also contested the 
claim to the ocean-fisheries, and advised the com- 
missioners, in the proposed treaty, to be satisfied with 
those along the coast. We now perceive that the 
agents of France abroad, and under-secretaries at 
home, on all occasions held the same official language 
as the ministry they served. Adams viewed the con- 
duct of France in the same light as Jay, and once, 
when Oswald objected to Americans curing fish on 
shore, wrote in his diary, " I could not help observ- 
ing that these ideas appeared to come piping hot 
from Versailles." 

It is evident that France regarded with disfavor 
any participation of her allies in the deep-sea fish- 
eries, and would have debarred them from it could 
this have been accomplished without exposing her 
purpose, and thus causing a disruption of the ami- 



FRENCH INTRIGUES. 1 83 

cable relation between the countries. The fisheries 
and the Mississippi navigation furnish a key to her 
attitude prior to and during the negotiation. Spain 
needed her assistance at Gibraltar and the West, and 
she wanted the aid of that power in excluding 
America from the Newfoundland fisheries, and there- 
fore desired to keep the matter of independence in 
abeyance until a satisfactory settlement of these 
questions should have been reached. Hence the 
pressure of her cabinet to have Jay treat with 
D'Aranda, and the commissioners with Oswald, 
under the latter's defective authority. The policy 
of France had always been, to have the secondary 
powers of Europe dependent upon her; and while 
she had embarked in the contest with the intention 
of severing the British Empire, she was not un- 
willing to have America revolve as her satellite, 
rather than assume the place of a fixed star in the 
political firmament. With this view, Vergennes 
had desired " that each State shall ratify the treaties 
concluded with France by a separate Act, because 
in this manner each will be bound to us separately, 
whatever may be the fate of the Confederacy." 
He had reason to hope that its trade would gravi- 
tate toward those who had befriended the colonies 
when in adversity ; and it was, therefore, essen- 
tial that his ulterior aims should not be made 
manifest. The negotiation of the other powers 



1 84 THE LIFE AND TIMES OF JOHN JAY. 

hinged upon the recognition of independence ; and 
as soon as the commissioners, by disregarding their 
instructions, had freed themselves from French con- 
trol, England's necessity placed them at a decided 
advantage. None of the ministers of other nations 
could proceed with their business until this pre- 
liminary had been settled. This done, the object of 
the alliance was secured, and the United States had 
no further interest in continuing hostilities. 

The mistake generally made in discussing this 
question, is in assuming that the document borne by 
Rayneval embraced the whole purpose of his mission 
to England. The secret designs were too important 
to be intrusted to any one not standing in the closest 
relations to his chief ; and Vergennes knew his busi- 
ness too well to expose on paper, projects, which, now 
that Britain had agreed to concede independence in 
some shape, would, if divulged, inevitably drive 
America into the arms of that kingdom. Neither 
the written instructions, nor the note submitted to 
the English ministry by him, contained any thing 
that made it necessary to despatch a confidential as- 
sistant to deliver, — nothing that required the hasty 
presence of D'Aranda at Versailles for consultation 
before Rayneval's departure, nor which justified the 
profound secrecy and mystery surrounding the entire 
proceeding, obliging the agent to travel under an 
assumed name. It is clear that other ends were in 



FRENCH INTRIGUES. 1 85 

view, which were doubtless, as Jay suspected, to 
intimate to Shelburne that Vergennes did not sustain 
the American demand for pre-recognition ; to sound 
him about the two powers excluding the United 
States from participation in the fisheries, and to 
ascertain how far he was prepared to support Spain 
in her pretensions at the West. 

Divining the feelings of the French cabinet, the 
foreign secretary wrote from London, " I have 
reason to believe that even the independency of 
America would not be agreeable to her (France), as 
the bond between them would thereby be loosened 
before the conclusion of peace." The mode of de- 
claring it was the point to be determined, the thing 
which was either to render it truly effective, and 
place America on high vantage-ground, or, on the 
other hand, keep her negotiation with England sub- 
servient to Spanish and French interests ; yet Ray- 
neval said in his note, " As the independence of 
America is a thing agreed upon, no remark need be 
made on that subject." Does not this language 
imply that the commissioners would not be sustained 
by their ally in demanding a preceding acknowledg- 
ment .? And again, with regard to the Newfoundland 
fisheries : " This matter has been treated discursively 
with Mr. Fitzherbert at Paris. If the ideas which 
have been proposed to him are judged impracticable, 
I am persuaded they will be weighed with equity at 



1 86 THE LIFE AND TIMES OF JOHN JAV. 

Versailles." In other words, the American preten- 
sions were not well founded, and his most Christian 
majesty did not mean to support them. We now 
know from Mr. Fitzherbert himself what those 
"ideas" were. He says that "Vergennes insisted 
on the expediency of a concert of measures between 
France and England for the purpose of excluding 
the American States from the fisheries." What the 
French court deemed " equitable " may be inferred 
from the despatch of Marbois already quoted, and 
Rayneval's own av^owal that "the American views 
should not extend beyond a coast-fishery." Shel- 
burne had in his possession at the moment, a letter 
from Oswald at Paris, saying, " The French court 
evidently wish the colonies might not be satisfied ; " 
and his lordship's papers show that during the inter- 
view with him, Rayneval " expressed a strong opin- 
ion against the American claim to the Newfoundland 
fisheries." He would doubtless have been more ex- 
plicit, and have laid open the entire purposes of his 
court, had not Jay's reasoning convinced the premier 
that it was "the interest of Britain to render us as 
independent of France as we are resolved to be of 
Britain ; " and the cabinet had already determined to 
clothe its minister at Paris with such powers as 
would prove satisfactory to the American nego- 
tiators. 
Jay's inflexible attitude in refusing to treat with 



FRENCH INTRIGUES. 1 8/ 

the Spanish or EngHsh envoys without an exhibit of 
proper credentials, induced Vergennes to despatch 
his secretary to London ; and his disappointment at 
not being able to dictate the terms of the subsequent 
peace was manifested in a querulous letter to Frank- 
lin, saying, " You have concluded your preliminary 
articles without any communication between us. 
The instructions provided that nothing should be 
done without the participation of the king." The 
consequence of his controlling American diplomacy 
as was desired, would, doubtless, have been similar to 
the experience of Holland at the same time. The 
Dutch envoy was directed to make confidential com- 
munications to Vergennes ; and, as he wrote, " I left 
things to him, depending on his word, and at last 
found myself his dupe." 

Some further illustration of the conduct of France 
is afforded by the instruction given to Genet by her 
revolutionary government. " At the very time that 
the good people of America expressed their gratitude 
in the most feeling manner, and gave us every proof 
of their friendship, Vergennes and Montmorin 
thought that it was right for France to hinder the 
United States from taking the political stability of 
which they were capable, because they would soon 
acquire a strength which it is possible they would be 
eager to abuse." We are not aware that any special 
occasion is here alluded to, the reference, doubtless, 



1 88 THE LIFE AND TIMES OF JOHN JAY. 

being to the general policy pursued by those minis- 
ters ; but the following sentence is more pregnant 
and germane to the period under review : "The same 
duplicity was employed in the negotiation for peace." 
These expressions indicate the feeling prevalent in 
the French cabinet down to the Revolution of 1789. 



By the execution of the preliminary articles, 
America was introduced as an independent power 
into the family of nations. She was under no en- 
gagements except with France and Holland. Her 
commissioners were clothed with authority to nego- 
tiate a definitive treaty, and adjust commercial inter- 
course, with the mother country. The first was 
signed the following September, being a simple 
transcript of the preliminary. Each country seemed 
disposed to meet the other in a liberal spirit, but 
their altered position necessarily involved some 
changes. The cherished navigation law affected 
America in a manner she had never before experi- 
enced, and England was unwilling to permit her en- 
franchised subjects the same freedom of trade as 
before the separation. Discussion on these and 
kindred points was prolonged, the latter power grow- 
ing more and more indifferent as she found the in- 
capacity of the Confederation enabled her to enjoy 
an unrestricted traffic with the late colonies, without 



FRENCH INTRIGUES. 1 89 

the necessity of conceding any privileges in return. 
Their commercial relations, therefore, remained un- 
defined and unsettled, leaving room for the raids of 
the future Lords Nelson and Collingwood upon 
America's West-India shipping, thereby supplying 
another argument for a closer union of the States. 

During the negotiation, Paris was the centre of 
interest to the whole world ; and, after Adams and 
Laurens arrived, its American colony swelled in 
numbers, and the Hotel of "Z« Belle Americaine" 
became a favorite resort. The city was never more 
gay and brilliant than at this period. The genius of 
Neckar had provided for the necessities of govern- 
ment, and seemed able to promote prosperity in the 
midst of an exhaustive war. The queen, then in 
the meridian of her beauty, was graceful, popular, 
and alnjost justified Burke's florid description of her 
appearance. Concerning this unfortunate princess, 
Mrs. Jay wrote, " She is so handsome, and her man- 
ners are so engaging, that I was ever ready, while in 
her presence, to declare her born to be a queen ; and 
I cannot but admire her resolution to superintend 
the education of her daughter." The scandal of the 
diamond necklace had not then arisen to poison her 
happiness ; and though men were listening, the prel- 
ude was not yet heard of the hurricane soon to 
devastate the aristocratic circles of the country. 

Aside from sickness, the time spent in Paris by 



1 90 THE LIFE AND TIMES OF JOHN JAY. 

Jay and his wife was extremely agreeable after 
their long and unhappy sojourn at Madrid. Another 
daughter came to replace the one lost while at that 
capital, and they were so situated as to hear fre- 
quently from their numerous friends at home. Their 
associations with Franklin were cordial and intimate, 
and they participated in the intellectual society which 
had gathered round him. The work of the Encyclo- 
pedists was done, and they were passing away. Vol- 
taire had been dead some few years. Diderot had 
returned from Russia, and, with D'Alembert, was, 
in a short time, to meet that death, which, he said, 
was "but a quarter of an hour's suffering, without 
consequence and without injury." They had sown 
the wind, A generation was entering the field of 
political and natural science, which, in a brief period, 
was to reap the whirlwind. Religion, with Jay, was 
no vague sentiment, but was ingrafted in his whole 
character ; and no man could be more appropriately 
styled a Christian statesman. Hence the rampant 
infidelity pervading the higher classes of France 
was a source of pain and annoyance to him. "I was 
at a large party," he says in one of his letters, "of 
which were several of that description. They spoke 
freely and contemptuously of religion. In the course 
of conversation, one of them asked me if I believed in 
Christ. I answered that I did, and that I thanked God 
that I did." Nothing further passed on the subject. 



FRENCH INTRIGUES. 191 

His health had become such as to cause anxiety 
on the part of his friends ; and he determined to try 
the waters of Bath before returning to Madrid, and 
adjusting his long-delayed treaty with the Spanish 
Government. After drinking them for some time, 
with decided benefit, he changed his purpose, and 
concluded, now that peace was restored, to withdraw 
from public life, and resume the practice of law in 
his native city. He was, however, unable to leave 
Europe before the following July, when, after an 
absence of five years, he reached America. His 
arrival at home was hailed with the greatest enthu- 
siasm by all classes of his fellow-citizens. Whig and 
Tory, for the time, joined to do honor to one who 
had so largely aided in restoring peace to their coun- 
try. The mayor and corporation voiced the public 
sentiment, and presented him with an address of 
welcome enclosed in a gold box, together with the 
freedom of the city. The address said, "You 
have executed the important trusts committed to 
you with wisdom, firmness, and integrity, and have 
acquired universal applause." Nor was this enco- 
mium undeserved. 

He must have been greatly impressed by the altered 
aspect of the metropolis since leaving it eight years 
before. The British had evacuated the previous 
November, but it still bore evidence of their long 
occupation. The desolating course of the great fire 



192 THE LIFE AND TIMES OF JOHN JAY. 

could be traced by blackened ruins, and many of the 
churches and public buildings which had been used 
as barracks were unfit for service. The population 
was much reduced by Tory emigration ; while the 
adherents of the king who still remained, and the 
promoters of independence, had, as yet, hardly learned 
to bury the past, and unite in starting the city once 
more on its destined career of commercial greatness. 

If its outward appearance had thus changed, he 
must have found other changes equally striking in 
the political condition of the country, as well as 
among his friends and early companions. His father 
and mother had both died. The lieutenant-governor 
and the judges, before whom he had pleaded as a 
young man, were fugitives from their native land ; 
and their places were occupied by his own relatives 
and personal friends. His Alma Mater, which had 
been turned into a hospital by the military, now 
sought endowment and reconstruction under repub- 
lican auspices. Duane, his former associate in Con- 
gress, governed the city, and held a court, wherein 
Hamilton, Burr, Edward Livingston, and a new gen- 
eration of lawyers, were qualifying themselves to 
appear later before that august tribunal, over which 
it was soon Jay's destiny to preside. 

De Tocqueville says that revolutions sweep away 
the causes that engender them, but seldom prove 
profitable to the generation which makes them ; and, 



FRENCH INTRIGUES. 193 

in the present case, the return of peace had not 
brought with it that degree of prosperity so gener- 
ally anticipated. The outward pressure which kept 
the States united, having been removed, selfish inter- 
ests tended to drive them apart. They had yielded 
to the central authority a portion of freedom for 
safety, and would now resume it. Pownall had pro- 
claimed that America would shift the world's political 
centre of gravity ; yet, for want of cohesion among 
the States, she was without weight in Europe. Jay's 
experience at home and abroad taught him the cause 
of the disease, and the proper remedy to be applied. 
He had largely aided in throwing off the British 
yoke, and it now became his " first wish to see the 
United States assume and merit the character of a 
great nation. Until this is done," he said, "the 
chain which holds us together will be too feeble 
to bear much opposition." Thenceforth his corre- 
spondence teemed with the necessity of a closer 
union ; and the sequel will show how far he assisted 
in bringing about the consummation that he hoped 
for, and so earnestly desired. 



194 THE LIFE AND TIMES OF JOHN JAY, 



XIV. 

SECRETARY OF FOREIGN AFFAIRS. 

BEFORE returning home, Jay had declared that if 
the country needed his services, he would give 
them ; and recent proceedings on the part of Congress 
called upon him speedily to determine this point. 
Ere the preliminaries had been settled at Paris, Liv- 
ingston resigned his position as secretary of for- 
eign affairs, but remained in office until peace was 
fully secured, when he withdrew, leaving it without 
a head. Many attempts were made to fill the va- 
cancy, all of which failed, owing to the difficulty of 
making a suitable choice. Having learned in May 
that Jay would soon return, the appointment was, 
without loss of time, conferred upon him, causing 
him not a little embarrassment upon his arrival the 
following summer. Though it seemed his duty to 
accept the proffered honor, his own affairs, and those 
of his clients, heretofore neglected, called for imme- 
diate attention. Congress had already adjourned. 
The next session was to be held at Trenton ; and as 
secretary, it would be necessary for him to reside per- 



SECRETARY OF FOREIGN AFFAIRS. 195 

manently in that city, and attend daily upon its 
meetings. While the subject was under considera- 
tion, his own State again elected him one of her dele- 
gates. As this would require but a small part of his 
time, he adjusted more pressing business, and pro- 
ceeded to Trenton one month after Congress had 
convened. That body, which had dwindled down to 
a small number, soon had before it the question of a 
permanent place for the seat of the General Govern- 
ment, and, after a prolonged discussion, decided on 
the banks of the Delaware as the proposed site, and 
authorized the erection of buildings for the accom- 
modation of the executive departments. Trenton was 
pronounced by the members inconvenient, and it 
was therefore resolved that they should meanwhile 
assemble in the city of New York. This seemed to 
remove his main objection ; and, having been empow- 
ered to choose his subordinates, he was at once in- 
ducted into office. No more fortunate selection could 
have been made. The soundness of his judgment, 
diplomatic experience, knowledge of European cabi- 
nets, inflexible resolution, and high moral character, 
fitted him to deal with all questions likely to come 
before the department over which he was to preside. 
The year 1785 opened with the city of New York 
as the temporary seat of the American government ; 
Congress having met at that place in January, with 
Jay as its organ of communication with all domestic 



196 THE LIFE AND TIMES OF JOHN JAY. 

and foreign bodies. This position was unquestion- 
ably the most responsible and influential under the 
Confederation. Its functions were important and 
varied. The secretary had to prepare plans of 
treaties with other nations, was expected to attend 
the meetings of Congress, and take its opinion on 
matters of moment, and was not unfrequently called 
upon to make reports involving laborious investigation, 
while at the same time he conducted an extensive 
correspondence with the agents and representatives 
of the country abroad. When Jay assumed charge of 
the office, it had been without a chief for two years ; 
and in consequence its current business was greatly 
in arrear, and its affairs generally in a state of con- 
fusion. Its labors had been largely increased by the 
late settlement, which opened the United States to 
the whole world. Commercial and other treaties 
were being negotiated ; and, as they were concluded, 
ministers and consuls had to be appointed. The 
inconvenient form of confederated government ren- 
dered the duties of the secretary unusually burden- 
some. He had at all times to consult a numerous 
body upon the proper course to be pursued, and fre- 
quently to exhibit the documents he had drawn up 
before despatching them. Congress sat with closed 
doors, and he was generally present to furnish mem- 
bers with any information required. He was system- 
atic, and brought to his charge talents of a high 



SECRETARY OF FOREIGN AFFAIRS. 197 

order. As a distinguished mark of confidence, he was 
soon authorized to open all official letters, and for a 
limited time to inspect in the post-office any private 
ones from which he thought advantageous information 
might be derived. Such inquisitorial proceeding was, 
however, so little in accordance with his sense of pro- 
priety, that it is believed he never exercised the right. 
The papers which he prepared during his secretary- 
ship evince a determination to base the diplomacy of 
the country upon principles of rectitude and impar- 
tiality. They also indicate entire familiarity with 
the law of nations, and a knowledge of the intricacies 
of European politics. The position of the country 
that he represented being now assured, they manifest 
a dignified self-reliance sometimes wanting in his 
earlier productions of the kind ; while in force of argu- 
ment, and literary ability, they are hardly surpassed 
by those from the polished pen of his immediate suc- 
cessor. The French minister could now write to 
Vergennes, "The political importance of Mr. Jay 
increases daily. Congress seems to me to be guided 
only by his directions ; and it is as difficult to obtain 
any thing without the co-operation of that minister, as 
to bring about the rejection of a measure proposed 
by him. ... I cannot deny that there are few men 
in America better able to fill the place that he occu- 
pies. The veneration with which he has inspired 
almost all members of Congress, proves, more than 



198 THE LIFE AND TIMES OF JOHN JAY. 

any thing else, that even the jealousy inseparable 
from the American character has not prevailed against 
him, and that he is as prudent in his conduct as he is 
firm and resolute in his political principles and in 
his coolness towards France." In this last he was 
at fault. Jay thus summed up his rule of action with 
regard to foreign powers: "Treating them all with 
justice and kindness, and preserving that self-respect 
which forbids our yielding to the influence or policy 
of any of them." 

As the recognized head of the Government, he was 
required to entertain the representatives of European 
nations, as well as distinguished strangers visiting 
the country. At least one ceremonial dinner and 
one drawing-room were given by him each week. 
On these occasions he was greatly assisted by his 
wife, whose womanly tact and large experience abroad 
enabled her to do the honors of the house with be- 
coming dignity. From persons who were present at 
these receptions, we learn that he wore a suit of sim- 
ple black, was pleasing in his manners, kind, affable, 
and unassuming. Mrs. Jay was richly dressed, and 
in good taste, observing the most rigid formalities in 
her intercourse with foreign diplomatists and their 
wives. 

When, by the preliminaries. Great Britain had rec- 
ognized the Mississippi as the western boundary of 
the United States, without reference to Spain's pre- 



SECRETARY OF FOREIGN AFFAIRS. 199 

tensions to the eastern bank of that river, Lafayette 
wrote that umbrage was taken by the court of Madrid. 
During a subsequent visit made to that place, his 
spirited representation induced its long-delayed rec- 
cognition of the newly born Western power ; and in 
the spring of 1785, Gardoqui, who had been deputed 
for the purpose, opened correspondence with the 
American secretary at New York. While in Paris, 
Jay had induced D'Aranda to state Spain's claim, 
which, besides the exclusive navigation of the Missis- 
sippi, was found to include all the territory west of a 
line drawn from the Flint in Georgia to the conflu- 
ence of the Ohio and Kanawha Rivers. It had, how- 
ever, been enlarged ; for by the treaty with England, 
signed a few months later, she had acquired the 
peninsula of Florida, and now asserted that her do- 
main extended as far north as that part of the West- 
em country which she had formerly demanded. 

The secretary was directed in the negotiation to 
stipulate for all territorial rights of the United 
States, and on no account to yield the navigation of 
the Mississippi for its entire length. He responded 
that he entertained the same sentiments on these 
points as when ambassador to Madrid, and was, 
therefore, in full accord with this position. The 
discussion began with this ultimatum on the part of 
the United States. Jay was soon satisfied that while 
Spain might yield somewhat in the matter of bound- 



200 THE LIFE AND TIMES OF JOHN J A Y. 

aries, she was fully determined to debar other nations 
from the use of the river, and that she had instructed 
her minister in the negotiation to give precedence to 
this question over all others. The discussion was soon 
brought to a stand-still. He thereupon suggested 
to Congress that he should be authorized to enter 
into a treaty of limited duration, by which America, 
without receding from her position, should agree not 
to navigate the river below her own boundaries, post- 
poning other subjects until a more energetic govern- 
ment — then in prospect — should have been installed, 
and settlements have grown onward to the frontier. 
Though not the Spain of Charles and Philip, it must 
be remembered that that country was still much 
more than the shadow of a mighty name which she 
soon became under Godoy the "Prince of Peace;" 
that she had been disappointed in not obtaining Gib- 
raltar, and was, in consequence, embittered ; that her 
people were spirited, and her power of aggressive 
warfare great. America, on the other hand, having 
just emerged from a prolonged contest, was relatively 
weak ; and continued peace seemed necessary to the 
adjustment of her finances, and the establishment of 
her new political institutions. She had, moreover, 
no assurance that France would think her guaranty 
covered these claims, but, on the contrary, good 
reason to suppose that she would feel bound, as here- 
tofore, to support those of Spain. Time was an 



SECRETARY OF FOREIGN AFFAIRS. 201 

important element for the country, and the course 
suggested by Jay seemed the most advisable to be 
pursued. Its proposal, however, excited distrust in 
Congress ; and Madison, overlooking the fact that 
Virginia had but a few years before directed her 
delegates to yield the navigation of the Mississippi, 
now professed to think that American interests 
would suffer in the hands of the very agent to whom 
the reservation was due, and sought to have the 
negotiation transferred to Madrid, and intrusted to 
the management of his friend, Mr. Jefferson, then 
minister to France. This idea, it is needless to say, 
was not entertained. 

Jay reported that he was convinced that his coun- 
trymen had a good claim to the use of the river from 
its source through to the ocean ; and unless an ac- 
commodation should take place, " the dignity of the 
United States, and their duty to assert and maintain 
their rights, render it proper for them to insist on 
this right, complain of its violation, and demanding 
in a temperate and inoffensive, but, at the same time, 
a firm and decided manner, that Spain shall cease in 
future to hinder our citizens from freely ,navigating 
the river. In case of refusal, it will be proper for the 
United States to declare war against Spain." The 
committee to whom this report was referred, deter- 
mined in view of the Philadelphia Convention, that 
no further steps in the negotiation should be taken ; 



202 THE LIFE AND TIMES OF JOHN JAY. 

and the question was bequeathed as a legacy to the 
new government. In the mean while, emigration 
Westward was swelling to large proportions. In- 
truders upon the disputed territory were driven off 
or punished by Spanish officials, who, it was said, in- 
cited the Indians to acts of hostility against the 
settlers. Rumors getting abroad that Congress pro- 
posed yielding to Spain's pretensions, the hardy yeo- 
men of the West, instigated by emissaries from 
revolutionary France, threatened to take matters 
into their own hands, sweep down the IMississippi, 
and drive the Spaniard into the Gulf. The curtain 
was rising upon Europe's great drama; a National 
Government was established at home ; and, though 
war seemed at times impending, the administration of 
Washington succeeded in adjusting the difficulties, 
until, a little later, the prompt diplomacy of Jefferson 
happily settled them in a manner not then anticipated 
by either nation. 

With Jay rested in a great measure the executive 
power of the Union, and experience more and more 
satisfied him that the Articles of Confederation were 
entirely inadequate for a country with such large and 
varied interests. His official duties required that he 
should demand from England a withdrawal from the 
Western ports that she continued to hold, as well as 
compensation for the slaves carried away by her 
troops ; while, at the same time, he was made painfully 



SECRETARY OF FOREIGN AFFAIRS. 203 

aware that Congress was powerless to enforce upon 
its constituents a compliance with the provisions of 
the treaty he had framed. His public papers and 
private correspondence during this period testify to 
his earnest desire to have an energetic government 
substituted for the weak Confederacy he was serving. 
He could not believe " such a variety of circum- 
stances have combined almost miraculously to make 
us a nation for transient and unimportant purposes," 
and thought "no time is to be lost in raising and 
maintaining a national spirit," became "daily more 
and more convinced that the Constitution of the 
Federal Government was radically wrong," and "that 
power to govern the Confederacy for general pur- 
poses should be given." Nor was he alone in view- 
ing the situation as full of peril. His solicitude was 
shared by Washington, Hamilton, and others who 
had endured the cares and anxieties of the war, 
hoping thereby to promote the welfare of the coun- 
try. The Articles had barely subserved the design 
of their creation, and were unfitted for a condition 
of peace. States, which, during the recent contest, 
had stood side by side, now waged commercial war- 
fare on each other. Public bankruptcy had already 
occurred, and private bankruptcy seemed about to 
follow. A centrifugal force was at work. The sec- 
tions were flying apart, and virtue was rapidly dis- 
appearing from among the people. Under these 



204 THE LIFE AND TIMES OF JOHN JAY. 

circumstances, any change must be an improvement. 
By the exertion of those who had been watching the 
drift, a remedy was happily sought in a closer union. 
This had won independence, and could alone secure 
it. Simultaneously with the negotiation between 
America and Spain, a convention of delegates from 
all the States, except Rhode Island, was held at 
Philadelphia. In it were men of eminent ability, 
probity, and experience, who had studied the political 
system of other nations, and were thoroughly qualified 
for the grave and important duty before them. Some 
of them, doubting their authority to go farther, 
wanted to patch up the Confederation ; while others, 
with a truer conception, were determined on framing 
a national Constitution adapted to the necessities of 
the country ; one which should combine freedom 
with stability, the union of all with the right of each 
separate State, and practically proclaim as a cardinal 
principle the sovereignty of the people heretofore in 
abeyance. On Sept. 17 the new Constitution was 
presented to the world. While doing so, Washing- 
ton said, "In all our deliberations we have kept 
steadily in our view that which appears to us the 
greatest interest of every true American, — the con- 
solidation of our Union, in which is involved our 
prosperity, felicity, safety, perhaps our national exist- 
ence." 
The present organization of the Government seems 



SECRETARY OF FOREIGN AFFAIRS. 205 

SO natural, that one is apt to presume the several 
members fell into the situation without any difficulty. 
On the contrary, the process was a slow one. Na- 
tions are created by events ; and, though the seed 
was sown, it required years for a truly national sen- 
timent to grow up among the people. The exigen- 
cies of the times had, in 1643, brought the Eastern 
Colonies into league, and later the home authorities 
recommended a concert of measures against the com- 
mon enemy. This, perhaps, directed their attention 
to the advantages of closer alliance, which were made 
more manifest by the Committees of Correspondence 
calling forth mutual sympathy, and producing har- 
monious action. The severance of political connec- 
tion with Britain was, it is true, the joint act of " the 
people " of all the colonies ; but there was nothing in 
the Declaration itself to indicate that they intended 
to form themselves into a body politic. This, how- 
ever, necessarily followed ; and the subsequent treaty 
conceded independence to the whole United States, 
embracing a far greater extent of territory than the 
original charters called for. No weighty considera- 
tion had been given to Franklin's plan of Union when 
laid before the Congress of 1775 ; nor was the pro- 
posal of New England heeded five years later, that 
the relations of the States to each other should be 
adjusted in a more solid and permanent manner. 
Throughout the Revolutionary struggle, there was dis- 



206 THE LIFE AND TIMES OF JOHN JAY. 

played, in many of them, an aversion to a closer con- 
nection, and to having more energy conferred on the 
central power. The Articles of Confederation, though 
a long step in advance, simply created a grand coun- 
cil, depending upon thirteen different authorities to 
give effect to its resolves. It formed " a perpetual 
union," but developed little of the spirit of national- 
ity. This last was fostered by the territorial expan- 
sion of the country, and, though repressed by the 
restrictive measures of President Jefferson, became 
an active, living sentiment after the second contest 
with Britain. 

After an arduous session of four months, the result 
of the Convention was to be submitted for approval 
to assemblies elected by the people of each State. 
Much diversity of opinion had been manifested in 
that body, and unanimity was secured only by con- 
cession and compromise. The larger States yielded 
their preponderating influence in the Senate ; the 
planting ones the importation of slaves after a brief 
period, and were, in return, protected by the rendi- 
tion of fugitives from labor, and a partial representa- 
tion in Congress of their negro population, all of 
them surrendering to the National Government nearly 
every attribute of sovereignty. It remained to be 
seen whether those who were to pass judgment upon 
the work would be actuated by the same spirit of 
conciliation that had been displayed at Philadelphia, 



SECRETARY OF FOREIGN AFFAIRS. 20/ 

and a more perfect and closer union obtained. It 
soon became the absorbing theme ; and, in some sec- 
tions, speakers rode from county to county, discuss- 
ing the propriety of its adoption. Jay firmly believed 
that the people are the source of all just authority; 
and, because the State Legislatures intervened, he 
had objected to the recent convention, suggesting, 
instead, that citizens of the separate States should 
elect deputies to one authorized to prepare, and at 
once inaugurate, a constitution for the whole country. 
Washington, who anxiously sought the opinions of 
others in order to arrive at a correct conclusion for 
himself, after a lengthened correspondence, thus 
sums up those of Jay : " He does not promise 
himself any thing very desirable from any change 
which does not divide the sovereignty into its proper 
departments. Let Congress legislate ; let others 
execute ; let others j udge. Proposes a governor- 
general, limited in his prerogative and duration ; that 
Congress should be divided into an upper and lower 
House, — the former appointed for life, the latter 
annually ; that the governor-general should act with 
the advice of a council formed for that 07ily purpose, 
the great judicial officers to have a negative on his 
acts. The more power granted the Government, the 
better, the States retaining only so much as may be 
necessary for domestic purposes ; and all the princi- 
pal officers, civil and military, being commissioned 



2o8 THE LIFE AND TIMES OF JOHN JAY. 

and removed by the National Government." These 
were Jay's theoretical views at the time, of what a 
constitution for the United States ought to be ; yet 
when the one framed at Philadelphia was placed 
before the country, he at once threw them aside, 
and gave it an earnest, cordial, and effective support. 
With the idea of forming and guiding public opin- 
ion, he, with Hamilton and Madison, addressed the 
people in a series of papers, commenting upon the 
proposed instrument, and advocating its adoption. 
Guizot said of these essays, that, in the application 
of the elementary principles of government to prac- 
tical administration, they were the greatest work 
known to him. Talleyrand strongly recommended 
them ; while Chancellor Kent thought them equally 
admirable for their wisdom, patriotism, candor, sim- 
plicity, and elegance. Jay's contributions, however, 
were small, being from the second to the fifth number 
inclusive, and one other near the close of the series. 
In the first four, he aimed to exhibit the advantage 
heretofore derived from a union of the States, and 
to point out the danger likely to be incurred from a 
separation. In the last, he reviewed the powers that 
were delegated to the General Government. It had 
been intended that he should participate largely in 
the preparation of the papers, but an unfortunate 
accident prevented his doing so. Upon his recovery, 
he published an address to the citizens of New York, 



SECRETARY OF FOREIGN AFFAIRS. 209 

in which, while not directly advocating the proposed 
plan, as was already done, he endeavored to show 
the small probability of a better one being secured, 
the manifest impolicy, and even danger, attending its 
rejection, thereby permitting the country to remain 
in its disorganized condition. The composition of this 
address displayed the eminently practical character 
of his mind, and the study he had given the subject. 
The opposition to the adoption of the Constitution 
in the Empire State, led by Governor Clinton, was 
powerful in numbers, ability, and influence ; and in 
the severe party struggle which ensued, intense heat 
was evolved. Her extent, population, wealth, and 
geographical situation conferred upon New York the 
ability to become an independent commonwealth ; 
and the governor, with many of the citizens, was 
unwilling that she should descend from this supre- 
macy, and place herself on a level with her smaller 
sisters at the East. Two of her delegates to Phila- 
delphia had withdrawn from the Convention ; and 
the third signed the Constitution, not that it met 
his full approval, but because the condition of affairs 
demanded a change, and the present plan was the 
best attainable. 

Public duties had required Jay's presence at the 
seat of government while the general convention was 
being held. He was now, without a dissenting voice, 
elected by his fellow-citizens a member of the one 



210 THE LIFE AND TIMES OF JOHN JAY. 

authorized to express the judgment of the State upon 
its labors. The canvass for seats was warm and ac- 
tive ; and when it assembled, it was found that out 
of sixty-five delegates, the friends, of the new system 
had elected but nineteen, — truly a discouraging 
prospect. 

The State Convention met at Poughkeepsie on June 
17, and was organized by the selection of Clinton as 
its presiding officer. The discussion was opened by 
Chancellor Livingston's showing the great necessity 
of union to the States, and declaring that the Articles 
of Confederation had not maintained domestic peace, 
supported credit, nor promoted commerce, and that 
they should therefore be abandoned. He was fol- 
lowed by Hamilton, who recommended to the mem- 
bers a calm and considerate examination of the 
instrument before them. While Jay participated in 
the deliberations of the body, and by his weight of 
character exercised a decided influence over its pro- 
ceedings, he made but a single elaborate speech. 
This was in reply to Smith, who had disapproved of 
the small number of representatives assigned to the 
new Congress, as affording an opportunity of their 
being corrupted. He dwelt therein upon the impor- 
tance of a union to the prosperity and happiness of 
the people; admitted objections to the proposed plan, 
but contended that the number of members would be 
found adequate to all the purposes of the federal gov- 



SECRETARY OF FOREIGN AFFAIRS. 211 

ernment ; demonstrated that there was more facility 
for corruption in the present Congress than there 
could possibly be under the Constitution, and that 
they would in time be found sufficiently numerous to 
please the most jealous advocate for liberty. He 
closed by expressing the wish that the delegates 
might return to their homes with the consciousness 
of having earnestly sought the truth, and done their 
duty. The younger Hamilton says, " The speech was 
delivered in his quiet, limpid style, without gesture." 
Such we should suppose to have been the case. Jay 
was not impassioned. Appealing to reason, he was 
unable to impress others with a fervor that he did 
not himself feel. All of his addresses are void of sen- 
tences which, spoken at critical moments, decide the 
fate of great questions. It was provided that the 
Constitution should go into operation when ratified 
by nine States. Eight had already signified their 
approval when the New-York Convention assembled, 
neither Virginia nor New Hampshire being of the 
number. Within one week they, too, ranged them 
selves beside the others, leaving the Union severed 
should New York fail to join them. This accession 
inspired the zeal of the friends of the Constitution, 
Jay wrote, " An idea has taken air that the southern 
part of the State will, at all events, adhere to union, 
and, if necessary to that end, seek a separation from 
the northern." The knowledge of this feeling prob- 



212 THE LIFE AND TIMES OF JOHN JAY. 

ably discouraged the followers of Clinton, The con- 
vention came together, as we have seen, with the 
greater part of its members opposed to ratification; 
but by the unflagging efforts of Hamilton, Livingston, 
and Jay, combined with apprehension of the evils 
which would follow a rejection of the instrument, the 
number of votes required for its passage was secured ; 
and on July 25, upon the motion of Jay, the question 
was determined by a majority of three. New York 
was thus preserved as the keystone to the Union, as 
she had been to the arch of independence ; and it is 
safe to declare that the influence of no one of the 
three delegates above named could have been spared 
on this important occasion. Kent, who was present 
as a spectator, says, "There was no difficulty in 
deciding at once on which side of the House the 
superiority in debate existed ; yet in the ordinary 
range of the discussion, it was found that the dignity, 
candor, and strength of Jay, the polished address and 
elegant erudition of Chancellor Livingston, the saga- 
city and exhaustless researches of Hamilton, were 
met with equal pretensions of their opponents." It 
is somewhat remarkable that during the debates by 
practical statesmen, no one pointed out the danger 
likely to arise from an equality of votes for the high- 
est two offices, which a few years later shook the 
entire political structure to its foundation ; nor that 
other defect whereby a House, two years after its 



SECRETARY OF FOREIGN AFFAIRS. 213 

election, though not representing the prevailing sen- 
timent, might be called upon to select a President 
for the United States. 

The Constitution having been ratified, open oppo- 
sition to it soon subsided. For a period, there was 
calm on the lately troubled waters, and all were dis- 
posed to extend to it a considerate support when the 
expected amendments should have been made. The 
imperfections of the present system had become so 
glaring, that men looked with hope to the future, sat- 
isfied that, even if they had not obtained what they 
wished, the new form of government was, at least, an 
improvement on the old. The quiet transfer which 
followed, of all administrative functions to an organi- 
zation called into being by a simple majority of the 
citizens of each State, was an anomaly in the world's 
experience, and proved a happy augury for the success 
of the experiment. 

Under every government where freedom of expres- 
sion is tolerated, two parties are found, having their 
germs in the principles of human nature itself. 
Whatever character they may assume at particular 
junctures, the moving spirit of the one is the desire to 
limit, and that of the other to extend indefinitely, the 
control of the people. While conservatism and prog- 
ress are the most important elements in their division, 
it does not follow that they will be kept in constant 
antagonism. Prejudice and self-seeking, personal 



214 THE LIFE AND TIMES OF JOHN JAY. 

dislikes and love of change, among the members, con- 
trol their movements. Many of the early emigrants 
had fled from oppression in Church and State, and, 
claiming the greatest liberty in their new sphere, 
scanned closely the proceedings of the home govern- 
ment, and contested every measure of the colonial 
authorities calculated to restrict their freedom. From 
the beginning of the Revolutionary contest, the people 
had displayed on all occasions an antipathy to a single 
national executive, and were only reconciled to it, in 
the new organic law, by its evident necessity, and 
the assurance that the trust was to be lodged in the 
hands of one who had voluntarily relinquished su- 
preme military command to retire to the repose of 
private life. They still watched with jealousy an 
office they deemed closely related to royalty. Soon 
after Washington's inauguration, this feeling was fur- 
ther developed by the forms that were introduced at 
the executive mansion, although they were due to 
others rather than to its incumbent. An animated 
discussion took place in Congress respecting the ap- 
pellation proper to bestow upon the chief magistrate, 
and the mode of intercourse between him and that 
body was manifestly imported from Britain. Wash- 
ington always had great admiration for fine, blooded 
horses, and when at home had, like other gentlemen, 
indulged his taste by driving his coach and four, with 
liveried servants, over the rough roads of his native 



SECRETARY OF FOREIGN AFFAIRS. 21 S 

Virginia. The same style, however, when displayed 
at Philadelphia, was thought to partake too much of 
the system that had been cast off; and the objection 
was not lessened when he started on his Eastern tour 
in this manner, accompanied by six negro servants, 
together with his public and private secretaries. 

All written instruments — even the Scriptures 
themselves — are subject to diverse interpretations; 
and, as might be expected, as soon as legislation was 
entered upon under the Constitution, it was found 
that among members an honest difference existed as 
to its proper construction. These things did not 
tend to allay the public feeling of uneasiness. For 
the time being, however, the antagonism was inchoate 
awaiting further developments before it assumed the 
condition of an organized political opposition. 



2l6 THE LIFE AND TIMES OF JOHN JAY. 



XV. 

NATIONAL PARTIES. 

WITH the installation of the new government, 
four executive departments were created, Jay 
remaining in that of State until the arrival of 
Jefferson, who had been appointed secretary. The 
others were filled by the nomination of Alexander 
Hamilton to the Treasury, Henry Knox to the War 
Department, and Edmund Randolph as attorney- 
general. All were young, their ages averaging less 
than forty years. The last named had been a dele- 
gate to Congress, governor of Virginia, and was a 
prominent member of the recent convention. In 
that body he had opposed an equality of the States 
in the Senate as well as a single executive. Knox 
had joined the army before Boston, served with 
honor throughout the Revolution, and was secretary 
at war under the Confederation. 

Hamilton and Jefferson, the leaders in the cabi- 
net, would have been men of mark in any country. 
They were in the prime of life ; had already 
stamped their impress upon the institutions of 



NATIONAL PARTIES. 21/ 

America, and were destined to become personally 
and politically antagonistic, marshalling the two 
great parties which were soon to contend for the 
government of the nation. The first named was a 
man of profound intellect, vigorous and versatile, 
self-sustained, decided and unyielding, with remarka- 
ble powers of investigation, grasping large principles, 
yet comprehending details ; deeply read in Constitu- 
tional law, and drawing his inspiration from the 
well-springs of the past. The other possessed great 
mental activity, and knowledge of human nature ; 
was sanguine, plausible, jealous, bold in speculation, 
and reasoned from theory rather than experience. 
Lackmg robust courage, he often achieved his ends 
by indirect and devious means which his bolder rival 
would have scorned to use, the rather frankly avow- 
ing his purpose, and justifying its pursuit. Jeffer- 
son was unfitted to meet men in open debate, and 
soon aspired to higher office and greater honors ; 
while his opponent, equally powerful with the tongue 
and pen, was satisfied with his elevated position and 
acknowledged influence. 

Mr. Jefferson entered upon the duties of his de- 
partment in the spring of 1790. He had been 
absent in France during the agitation attending the 
convention and the adoption of the Constitution ; 
though it was understood that when amended, it 
met his approval. While lingering in Virginia upon 



2l8 THE LIFE AND TIMES OF JOHN JAY. 

his return, he had carefully gauged public senti- 
ment, and found that it was adverse to the pomp 
and ceremony by which the chief magistrate was 
surrounded, as well as to all measures calculated to 
increase the authority of the General Government 
at the expense of the several States. Hamilton's 
proposals for funding the national debts, and assum- 
ing those of the States, had been introduced into 
Congress two months before Jefferson's arrival in 
New York, and were at the time an absorbing 
theme in public journals and private assemblies. 
Knowing nothing about matters of finance, but find- 
ing that they had the concurrence of Washington, 
Jefferson gave them a tacit support ; and after being 
coupled with a scheme for planting the permanent 
seat of Government on the banks of the Potomac, 
they passed both Houses during the summer, and re- 
ceived the signature of the President. It is fair to 
add that Jefferson always claimed that he had been 
deceived into giving them any countenance what- 
ever ; though he had resided at New York four 
months before they passed Congress, and, as he says 
politics were the chief topic, he must have heard 
them discussed in every social circle. 

By the enactment of these laws, Hamilton's influ- 
ence became supreme, to the manifest annoyance of 
Jefferson, The secretaryship of state was the first 
place in the cabinet, yet the secretary of the treas- 



NATIONAL PARTIES. 2ig 

ury by this stroke had become the all-powerful min 
ister. The financial arrangements precipitated the 
latent elements of opposition into an organized body 
which rapidly grew and expanded. It required a 
leader, and thenceforth Jefferson marshalled his 
forces with the skill of a military veteran. Wary, 
•cool, untiring, in profound secrecy he laid plans to 
be carried out by subordinates, and endeavored by 
covert means to unite his friends, and sow distrust 
among opponents. As a press was needed, he 
called Freneau from New York, and pensioned him 
with an office to attack that Government whose ser- 
vants they both were. He proceeded to enlist 
under the Republican, or Democratic, banner the 
young, ardent, and aspiring ; all who had opposed 
the Constitution, together with those whom he 
could persuade that the Treasury was corrupting 
the country, and preparing it for the introduction of 
monarchy. As an evidence of this, he pointed to the 
trappings of royalty which had been introduced at 
the Presidential mansion, and to the assumption of 
State debts. On the other side were found most 
of those distinguished men who, either in the cabi- 
net or field, had participated in the Revolution, with 
many bankers and merchants now enjoying an un- 
usual degree of prosperity. Those, too, who had 
favored the adoption of the Constitution, became 
adherents of the administration, while by the 



220 THE LIFE AND TIMES OF JOHN JAY. 

assumption of State debts, the possessors of these 
were made upholders of the Union. The financial 
measures of the secretary had resulted, as he per- 
haps hoped, in having individuals in all sections of 
the country interested in the stability of the Gov- 
ernment, and therefore willing to support those in- 
trusted with its management. Jay's conservative 
nature, past experience, friendship and intimate 
association with Washington, Ames, Schuyler, 
Hamilton, naturally led to his political identification 
with those whose principles he thought essential to 
the security and continued growth of America. 

The two great parties thus organized were equally 
patriotic, and alike desired to maintain the Constitu- 
tion, promote the advancement of the country, and 
increase the happiness of its citizens. They dif- 
fered only as to the mode of attaining these ends, — 
the one thinking to do so by an energetic national 
government ; the other by restricting its power, and 
reserving to the separate States a greater or less 
supervision over its proceedings. Some of the Fed- 
eralists, when in the convention, would have pre- 
ferred a stronger form of government than that 
adopted; yet, the Constitution once ratified, they 
were resolved that it should have a fair trial, though 
they entertained grave doubts as to its being the best 
fitted for the purpose intended. The federative 
principle of combining State and popular represen- 



NATIONAL PARTIES. 221 

tation was a novelty in political science, and its effi- 
cacy was yet to be tested. Jay, after lending all his 
powers to obtain the adoption of the Constitution, 
thus expressed himself : " Whether any people can 
long govern themselves in an equal, uniform, and 
orderly manner, is a question of vital importance, 
whose solution can only be determined by experi- 
ence." They had in youth been nurtured by the 
spirit of England's laws and literature, and, as it 
were, still breathed the atmosphere of her institu- 
tions. These last were of a more popular character 
than those of any other nation, and had always 
been held up before them as combining the largest 
degree of personal freedom to the subject, with 
extreme energy on the part of the central authority. 
Hence, while one party was inclined to give a nar- 
row and contracted interpretation to the organic law 
of America, the other wished to assimilate its oper- 
ation to that of Britain, and claimed for it a latitude 
which they deemed necessary for the object of its 
creation. 

Experience has demonstrated that they both con- 
tributed to the national welfare during the period of 
universal agitation growing out of the French Revo- 
lution. Like the centripetal and centrifugal forces 
of the solar system, they preserved the nation in a 
state of comparative equilibrium, preventing on the 
one side its alliance with France, and on the other 



222 THE LIFE AND TIMES OF JOHN JAY. 

its joining with Britain in her sanguinary contest 
with that country. Not the least fortunate or provi- 
dential incident in the annals of America, is the 
fact that things had run their course, and a stable 
government been founded under a chief of sound 
judgment, moderation, and firmness, before the cur- 
tain rose upon the portentous and bloody drama 
enacted in France. The state of the country would 
have been deplorable had that stupendous event oc- 
curred during the weak and inefficient government 
of the Confederation. With little cohesion between 
the States, their citizens differing in character, inter- 
ests, and pursuits, and split into factions, it would 
have proved an inviting field for the subtle diplomacy 
and military power of the belligerents, and many of 
them would doubtless have been remanded into that 
condition from which they had but lately emerged. 

The opening scenes of the French Revolution 
were hailed with unbounded enthusiasm by all 
classes in the United States. Having recently 
established their own independence by the generous 
aid of that nation, their sympathy and good will 
were attracted by her efforts to remove the inequali- 
ties which weighed so heavily upon the freedom and 
prosperity of her subjects. Its farther progress, 
however, destroying the social organization, and pro- 
ducing a constitution which sprang not naturally 
nor developed gradually from the life and character 



NATIONAL PARTIES. 223 

of the people, was well calculated to arrest the 
attention of the calm and more experienced states- 
men of America. They knew that it was not pos- 
sible for a body of theorists, however skilled, to 
form of themselves a system of government as a 
mechanic would construct a machine. Morris, an 
acute observer then on the spot, wrote to Washing- 
ton in the summer, " The authority of the king and 
nobility is completely subdued, yet I tremble for the 
Constitution." When the movement had pro- 
gressed still farther, royalty been abolished, and the 
guillotine installed in the seat of power, the Federal 
party lost all sympathy with it, and shrunk from 
countenancing the assassins who professed to be 
exponents of the national will. 

Hamilton, who knew the condition of France only 
from association with her higher military officers, 
thus expressed himself : " When I perceive passion, 
tumult, and violence usurping the seat where reason 
and cool deliberation ought to preside, I acknowl- 
edge that I am glad to believe there is no resem- 
blance between what was the cause of America and 
what is the cause of France ; that the difference is 
not less great than between liberty and licentious- 
ness. Would to Heaven that we could discover in 
French affairs the same decorum, the same dignity, 
the same solemnity, which distinguished the cause 
of American Independence!" 



224 ^^^^ LIFE AND TIMES OF JOHN JAY. 

Jefferson, on the other hand, had resided in the 
country, was famihar with the nature of the French 
government, and counselled the early leaders in 
a manner hardly befitting an ambassador to the 
king. He saw nothing to condemn in the atrocious 
September massacres, save as they might bring dis- 
credit upon the "patriots." Said he, in speaking of 
them, " In the struggle which was necessary, many 
guilty persons fell without the form of trial, and with 
these some innocent. It was necessary to use the 
arm of the people, — a machine not quite so blind 
as balls and bombs, but blind to a certain degree." 
These were the sentiments of the Republican chief, 
and his followers took the same general view of the 
proceedings in Paris. The violence with which such 
opinions were expressed, naturally drove their adver- 
saries to closer sympathy with English institutions. 
The proper interpretation to be given to the Con- 
stitution had heretofore been the dividing-line ; but 
now a foreign element was introduced, which, carry- 
ing the country back to a semi-colonial dependence 
on Europe, widened the breach between the national 
parties of America. Henceforth the difference 
between them was more distinctly marked. In the 
selection of his first cabinet, Washington appears to 
have thought to conduct' the government independ- 
ent of either of them. If such was his expectation, 
he was undeceived before the close of one term. 



NATIONAL PARTIES. 22$ 

The feeling by that time had become so violent that 
he had to choose their successors exclusively from 
those in entire sympathy with his own federal 
principles. 



226 THE LIFE AND TIMES OF JOHN JAY. 



XVI. 

CHIEF JUSTICE. 

WHEN organizing the government, Washing- 
ton's attention was naturally drawn to the 
eminent abilities and distinguished services of Mr. 
Jay ; and he manifested his appreciation by tender- 
ing him any cabinet position he might select. He, 
however, wrote to the President on another occasion, 
that there was no public station which he would 
prefer to that of chief justice of the Supreme 
Court. His earlier studies, the judicial character of 
his mind, his familiarity with the principles under- 
lying American institutions, combined with the ex- 
perience required while presiding over the highest 
tribunal of his native State, peculiarly fitted him 
to discharge the functions of this dignified and im- 
portant office. The Act of Congress establishing it 
was signed in the autumn of 1789; and he was the 
same day nominated its chief, with five associates, 
one for each circuit, it being required that two 
terms of the Supreme Court should be held each 
year. 



CHIEF JUSTIC'E. 227 

Jay was forty-four years of age when he took his 
seat upon the bench. He is described as somewhat 
under middle height, with a person well formed, 
though rather thin, and "in his manner combining 
the affability of the gentleman with the dignity of 
the statesman." His health had been restored ; 
and with a vigorous, well-balanced mind, and great 
power of endurance, he conscientiously performed 
the duties appertaining to the position. He as- 
sumed the traditionary gown of the English judges, 
but discarded the solemn wig so intimately con- 
nected in the public mind with the features of 
Somers, Mansfield, and Pratt, choosing rather to 
wear his hair off the forehead, and tied behind in a 
cue. The face beneath indicated strength ; and 

" Deep on his front engraven 
Deliberation sat." 

As was well said by one who knew him, " When the 
ermine of the judicial robe fell on John Jay, it 
touched nothing less spotless than itself." 

In a letter enclosing his commission, Washington 
embraced the occasion to express the singular pleas- 
ure he felt in addressing him as the head of " that 
department which must be considered as the key- 
stone of our political fabric." In this he did not 
magnify its scope ; as no tribunal is so august in its 
functions, nor possesses the same extended jurisdic- 



228 THE LIFE AND TIMES OF JOHN JAY. 

tion. In foreign countries, the judiciary forms no 
part of the political system, its business being con- 
fined to the interpretation and application of the 
laws in cases of dispute between individuals. To the 
other branches of the American Government belong 
those duties, which have been, from time to time, ex- 
pressly imposed with the Constitutional limitations. 
This court, as its title implies, is not only em- 
powered to arbitrate between the States, but to 
review, and even nullify, the Acts of the supreme 
legislature itself, when they contravene the organic 
law which it is intended to protect from covert or 
open assault. At that time, the path to be pursued 
was untrodden : the bounds of its authority were 
to be accurately ascertained and mapped out, while 
questions touching the powers of Congress and the 
relations of the States to each other and to the cen- 
tral government were to be determined. Jay wanted 
the latter endowed with ability to resist their en- 
croachments. He had realized by his own experi- 
ence that the Articles of Confederation were inade- 
quate for such a nation as the future promised, and 
was too well aware that their most striking defect 
was the absence of any judicial body to interpret 
and enforce the laws, not to assert for the tribunal 
over which he presided, the utmost power conferred 
upon it. It was therefore to be expected that fault 
would be found with its early decisions. Regarding 



CHIEF JUSTICE. 229 

the United States as supreme within its boundaries, 
they were marked by what may be deemed an ex- 
treme Federal bias. For the first time, the States 
felt that they were controlled by superior authority, 
and, like a newly bridled horse, were restive and 
impatient. A question soon arose which afforded 
Jay the opportunity to vindicate the independence 
of the court, and gave assurance, that, in his hands, 
it would be preserved from trespass by co-ordinate 
departments. It had been enacted that all applica- 
tions for pensions should be passed upon by the 
Circuit Court, with the right of appeal to an exec- 
utive officer of the United States, The chief justice, 
with his associates, pronounced the law unconstitu- 
tional upon the ground that no duties, other than 
judicial, could be laid upon them, nor a revisionary 
power granted over their proceedings. Congress 
wisely accepted this decision as final, and, recogniz- 
ing their supremacy as the expounders of the Consti- 
tution, repealed the Act at the following session. 

The first term of the Supreme Court was held in 
the city of New York, in the spring of 1790, when 
its organization was effected, and its officers ap- 
pointed. At the succeeding February term, attor- 
neys and counsellors were admitted ; but, unlike its 
sessions at the present time, there were no cases 
upon the trial-docket. On April 4, 1790, the first 
circuit was held, when Jay delivered his charge to 



230 THE LIFE AND TIMES OF JOHN JAY. 

the grand jury. We have already alluded to the 
circumstances under which, as head of the State 
Judiciary, he had addressed a similar body at Kings- 
ton. The struggle in which the country was then 
engaged had been brought to a close, her independ- 
ence was acknowledged, and a national government 
instituted. Its successful operation would largely 
depend upon his interpretation of its powers ; and 
it therefore must have been with great emotion, 
and a deep sense of responsibility, that he entered 
upon his duties, and proclaimed that justice and 
good faith were to be his guide in the solution of 
all public as well as private controversies. Law 
founded on religion was the staple of his argument. 
On this basis alone, he thought, could rational 
liberty be built. " Let it be remembered," he 
said, "that civil liberty consists, not in the right 
for every man to do just what he pleases, but it 
consists in an equal right for all citizens to have, 
enjoy, and do in peace and security, and without 
molestation, whatever the equal and Constitutional 
laws of the country admit to be consistent with the 
public good." 

At another circuit held in the city, the chief jus- 
tice presiding, the first case involving a Constitu- 
tional question was decided ; and the earliest opinion 
filed in the Supreme Court was one in favor of the 
State of Georgia, by the tenor of which she was 



CHIEF JUSTICE. 23 1 

granted an injunction to stay the payment to others 
of a debt which she had confiscated. This suit is 
chiefly remarkable as being the only one in which a 
special trial by jury has been had in that court. 
The most important case while Jay sat upon the 
bench, was an action instituted in 1792, by a citizen 
of South Carolina, against the State of Georgia. It 
was novel in character, and had to be determined, 
not by precedent and legal authorities, but by the 
great principles of justice and Constitutional law. It 
turned upon the question whether a State, being 
sovereign, could be sued in the Federal Tribunals 
by an individual. After the service of the writ, the 
attorneys, on the part of Georgia, presented a pro- 
test, denying the jurisdiction of the court, and, under 
instructions from the governor, declined taking any 
further part in the proceedings. The case was held 
under advisement for two weeks, when four of the 
five judges each delivered an able and elaborate 
opinion, sustaining the right of a citizen to sue a 
State of the Union. The chief justice drew the 
distinction between a sovereignty, where the power 
is vested in a single person, and a State, where it 
is lodged in an aggregate of individuals. It was 
admitted, he said, that a State possessed the power 
to sue a citizen, and why, therefore, could not a man 
sue his fellows in the aggregate .-* The Constitution 
gave the court jurisdiction over controversies be- 



232 THE LIFE AND TIMES OF JOHN JAY. 

tween a State and citizens of another State, and in 
no respect indicated who was to be plaintiff and who 
defendant. Surely, while enabling a State to become 
a plaintiff, it in no wise debarred it from being made 
a defendant, in a suit brought, it might be, by the 
same individual. He then asked, was it to enjoy 
the high privilege of acting wrongfully, without con- 
trol } He deemed the construction wise, honest, 
and useful, as the most obscure citizen would thus 
not be left without the means of obtaining justice, 
which was the same, whether due one man from a 
million, or a million from a single person. When 
delivering the opinion, he said, " The prostration of 
State rights is no object with me. I remain in per- 
fect confidence, that with the power which the people 
and Legislatures of the States indirectly hold over 
almost every movement of the National Government, 
the State need not fear an assault from bold ambi- 
tion, or any approaches of covert stratagem ; nor 
would it be any degradation of their authority to 
submit to the supreme judiciary of the United 
States." • 

The maxim that "the king can do no wrong," is 
sound in Constitutional law ; for, being the supreme 
authority, there is no court competent to take cog- 
nizance of an action against him ; and if there were, 
it could not enforce its decisions, as the head of a 

* See Appendix B. 



CHIEF JUSTICE. 233 

nation is not within reach of its tribunals. As Coke 
says, the king can arrest no man, for there is no 
remedy against him. The separate States did not, 
however, possess entire sovereignty. Some of its 
attributes had been conceded at the time of the 
Confederation, and so many more for the purpose of 
forming "a more perfect union," that it was a ques- 
tion whether they could of themselves exercise any 
sovereign powers whatever. Indeed, all those claimed 
for them by Jefferson in the Declaration, had in 
express terms been conferred upon the National 
Government. The Supreme Court has authority to 
issue writs of execution against one State to sat- 
isfy a judgment obtained by another ; and in becom- 
ing amenable to those issued for the benefit of a 
private citizen, the dignity of a State would be no 
further compromised. The court may even now 
wrest from its possession an individual held in con- 
travention of his rights as a citizen of the United 
States, but the sufferer under a Constitutional 
amendment has no means of redress for the injury 
to person or property that he may have sustained 
from the States. 

It is true that Hamilton in "The Federalist" had 
promulgated a different opinion ; but that of the 
court was strongly upheld by the attorney-general, 
who was a strenuous advocate for State rights, and 
had refused to sign the Constitution at Philadelphia 



234 THE LIFE AND TIMES OF JOHN JAY. 

because of its alleged defect on that head. Speaking 
of Georgia's denial of jurisdiction, he said, *'This 
brings into question a Constitutional right supported 
by my own convictions : to surrender it, in me, would 
be official perjury." Suits of a similar nature had 
been instituted before against both New York and 
Maryland ; yet the announcement of the present 
decision aroused public attention, and was officially 
brought to the notice of several State Legislatures. 
Further proceedings in the case were postponed ; 
but Georgia lost no time in openly defying the 
Federal authority, declaring any of its officers at- 
tempting to levy an execution within her borders, 
guilty of felony, and liable to capital punishment. 
Feeling in the State did not subside until her own 
interpretation of the Constitution had been embodied 
in an amendment. In consequence of this, the 
court in February, 1798, determined not to take 
further action in the matter. The capitalists of 
America have since had abundant reason to regret 
the adoption of this amendment ; and it is clear that 
the reputation of some of the States would have 
been subserved, had Jay's construction been estab- 
lished as law, and the ability to enforce it sustained 
by public sentiment. The main, indeed the only, 
purpose in forming the Constitution, was " to estab- 
lish justice;" and this object cannot be entirely 
accomplished while members of the Union are per- 



CHIEF JUSTICE. 235 

mitted to disregard with impunity their engagements, 
and repudiate their solemn contracts. The United 
States have thought it not to comport with the 
honor of a great nation to wrong the meanest of her 
citizens, and has therefore opened all of her courts 
to those claiming she is their debtor. The dignity of 
the several States would in no wise be lowered were 
their creditors permitted to establish the justice of 
their claims in the same manner, reserving to the 
Legislatures the question of making the appropriation 
for their payment. While presiding over a circuit 
in the city of Richmond, it was officially brought 
to the notice of the chief justice, that Genet, the 
French minister, after landing at Charleston, had 
proceeded to equip privateers against English com- 
merce, and had also compromised the country by 
erecting courts of admiralty within its bounds for 
the condemnation of their prizes. He thereupon 
instructed the grand jury to present all persons 
found guilty of violating the law of nations with 
respect to the belligerent powers, thus affirming, that, 
independent of any statute, the United-States courts 
possessed jurisdiction over such offences. Nor was 
he alone in the opinion. The same view was under- 
stood to be held by McKean of Pennsylvania, a 
stalwart Republican, and by the district judges of 
the United States, with the single exception of Chase 
of Maryland, a Federalist. Under the construction 



236 THE LIFE AND TIMES OF JOHN JAY. 

that the law of nations formed part of the common 
law of the land, the counsel of Genoa at Philadel- 
phia was tried, and found guilty of misdemeanor in 
sending anonymous and threatening letters to Ham- 
mond, the British minister; and an effort was also 
made to convict both Cobbett and Bache for libels 
against the ambassador of Spain. No decision ad- 
verse to that of the chief justice was given until 
1798, when Judge Chase ruled to the contrary; and 
the question was definitely settled by the Supreme 
Court, determining that an infringement of inter- 
national law when not embodied in a statute is not 
indictable in the Federal tribunals. 

The case of Henfield, arrested at Hammond's 
request, aroused much attention. His prosecution 
was under the advice of the attorney-general, who 
held that such persons were subject to punishment 
as disturbers of the peace of the country. The 
defendant was admitted to have been a citizen of 
the United States while serving as an officer on 
board a vessel commissioned by Genet, which had 
been fitted out in America, and had captured and 
brought a British prize into the port of Philadelphia. 
The chief justice, who presided at the trial, charged, 
that, as the country was in a position of neutrality, 
those who aided either belligerent transgressed the 
common law. Notwithstanding this, the prisoner 
was acquitted upon the plea that the offence had 



CHIEF JUSTICE. 237 

been committed in ignorance. Great sympathy was 
expressed for him, and the conduct of Jay was com- 
mented on with unusual severity. It was contended 
that Henfield's case was precisely similar to that of 
Lafayette, De Kalb, Steuben, and others, who left 
their own country to participate in the American 
struggle. This was unjust. The court did not deny 
the right of a citizen to expatriate himself, and enter 
the service of another nation ; but, in the present 
affair, the vessel had been fitted out, manned, and 
commissioned in America, to cruise against the com- 
merce of a nation with whom the country was at 
peace. 

There was no law at the time on the statute- 
books, prohibiting proceedings like those in question ; 
and in the absence of such, there is little doubt that 
Jay's ruling prevented hostilities with England. 
America professed neutrality as regarded the powers 
at war, and was bound by international law to pre- 
vent her ports from being used for the purpose of 
warring against the commerce of either of them. 
The distinguished jurisconsults who assembled at 
Geneva held that one nation is responsible for the 
material damage that another may sustain from 
a wrong originating within its jurisdiction, and 
said in the case of the "Alabama," "The British 
Government cannot justify itself for* a failure of 
due diligence on the plea of inefficiency of the 



238 THE LIFE AND TIMES OF JOHN JAY. 

legal means of action which it possesses." ' Wash- 
ington's sense of justice enabled him to anticipate 
this determination, when he declared that the United 
States ought to " effectuate the restoration of, or to 
make compensation for, prizes which shall have been 
made by privateers fitted out at their ports." 

The last case that we shall notice was the very 
interesting one decided in the city of Richmond in 
1793, in which the chief justice presided, assisted 
by Associate Iredell and the district judge. It was 
eloquently and exhaustively argued by the highest 
legal talent of the South, Patrick Henry and John 
Marshall appearing for the defendants, while Mr. 
Wickham, and others equally eminent, represented the 
plaintiffs. The verdict was to the effect that debts 
due to British subjects by citizens of Virginia should 
be paid, notwithstanding that the Acts of her assem- 
bly passed prior to the adoption of the Constitution 
prohibited their recovery.^ Jay said the Revolution 

' Before the Geneva Conference was held, the British and American Gov- 
ernments had settled upon the principle that " a neutral power is bound to use 
due diligence to prevent the fitting out, arming, or equipping within its 
jurisdiction of any vessel which it has reasonable ground to believe is intended 
to cruise, or carry on war, against a power with which it is at peace ; and also 
to use like diligence to prevent the departure from its jurisdiction of any 
vessel intended to cruise, or to carry on war, as above ; such vessel having been 
specially adapted in whole or in part within such jurisdiction to warlike use." 

^ In December, 1787, the State of Virginia passed an Act removing all 
restrictions to the collection of debts due to British subjects, provided the 
governor should first notify the State tliat the posts had been surrendered in 



CHIEF JUSTICE. 239 

had not annulled the debt, though the amount had 
been paid into the State Treasury, and the court 
could take no cognizance of the breach of a treaty 
in bar without a declaration to that effect by Con- 
gress. This decision, overruling the proceedings of 
the State, and affecting many prominent persons in 
it, was a cause of great dissatisfaction, and proved 
a well-used weapon in the hands of those opposed to 
the national administration. 

In accepting the Presidency, Washington assumed 
duties to which he had heretofore been a stranger. 
The Constitution was the chart by which he was to 
be guided, but its construction was not at all times 
clear ; and, as was his wont on occasions of doubt, 
he conferred with those who shared his coniidence. 
The members of what is now termed the cabinet, 
were equally divided in their interpretation, and the 
two leading minds hostile to each other. Under 
these circumstances, he naturally turned to Jay, who 
was frequently consulted as to the proper course to 
be pursued during the foreign complications then 
rife. His advice was also sought as to the nature of 
the reception to be accorded Citizen Genet, upon his 
arrival as the representative of the New French 
Republic, and afterwards upon the expediency of 

conformity with the treaty, and that Great Britain " is taking measures for 
the further fulfilment of said treaty by delivering up the negroes belonging 
to citizens of this State." 



240 THE LIFE AND TIMES OF JOHN JAY. 

issuing a proclamation of neutrality, and a suitable 
draft of such a paper requested at his hands. Wash- 
ington also appealed to him from time to time, to 
suggest subjects to be brought forward for the con- 
sideration of Congress, and, when preparing his 
farewell address to -the American people upon re- 
tiring from their service, privately submitted the 
sketch of that celebrated paper to him and Hamilton 
for revision. Jay's judicial language coincided in all 
cases with the neutral position of the Government, 
and was calculated to strengthen its hands ; and one 
of his charges was published by it as indicative of 
its exposition of international law. The situation 
of foreign affairs was novel and perplexing to the 
President, who, fancying an analogy to the English 
Constitution, called upon the judges of the Supreme 
Court for an extra judicial opinion. This they de- 
clined giving, as "they felt themselves precluded 
from determining questions not presented to them 
in the regular course." 



CANDIDATE FOR GOVERNOR. 541 



XVII. 

CANDIDATE FOR GOVERNOR. 

WE have now to narrate an episode in Jay's life 
which at the time gave rise to a very embittered 
feeling, and was the indirect cause of his final with- 
drawal from public service. As governor of New 
York, Clinton had for some time failed to satisfy a 
large number of his constituents. When he was first 
placed in that position, the State was overrun by 
the enemy ; and an officer of boldness, energy, and 
decision was required for the emergency. Fourteen 
years had since passed ; and an executive possessing 
the qualities of a statesman rather than those of a 
robust leader was now demanded, as well as one 
whose political opinions were in full accord with the 
administration of Washington. The task of his dis- 
placement had been undertaken by the Federal party 
three years before without success. The governor 
had numerous followers among the rural population 
of the State ; and to accomplish his overthrow, it 
was necessary for his opponents to choose a candi- 
date who would receive the cordial support of their 



242 THE LIFE AND TIMES OF JOHN JAY. 

party-friends, and one whose fitness for the office 
would challenge that of the body of citizens, who 
under ordinary conditions determine an election. 

The selection of a man combining these qualifica- 
tions became a matter for careful consideratioi; with 
the leaders of the opposition. The chief justice was 
generally regarded as the most available, but he had 
before declined the nomination ; and his known aver- 
sion to personal and party warfare, with the exalted 
station that he occupied under the National Govern- 
ment, seemed to preclude all chance of his agreeing 
to enter the political arena. Gen. Schuyler,' and his 
son-in-law, Hamilton,' appear to have taken great 
interest in the question, the earlier proceedings 
being conducted under the most complete modern 
system. Jay's ' consent to become a candidate was 
first wrung from him by these gentlemen, when, at 
a meeting of their friends, he was formally placed in 
nomination, and a committee appointed to wait upon 
him, who reported that "it would give him great 
satisfaction to serve his fellow-citizens in that 
office if honored with their suffrages." Clinton's ' 
supporters had entered him in the lists the day 
before ; and, meetings being held ratifying the nom- 
inations, the issue between them was fairly joined. 

' These names afford a striking illustration of the diversity of race em- 
bodied in that of the American. Schuyler was of Dutch descent ; Clinton 
Irisli ; Jay, French, and Hamilton, Scotch. 



CANDIDATE FOR GOVERNOR. 243 

In an address to "the independent voters," Jay's 
committee said, " If a man of the most approved 
integrity, abilities, and patriotism, who has served 
you in various capacities at home and abroad, who 
was the principal framer of your State Constitution, 
and one of the chief agents in negotiating the treaty 
of peace with Great Britain, is worthy of your choice, 
come forward, and give your suffrage for him regard- 
less of the frowns or opinions of any person. The 
man whose cause you will espouse is a citizen who 
has not only the ability, but continues the disposi- 
tion, to render the most essential service to this 
State ; and whose fame is not confined to the country 
that gave him birth, but has reached, and done honor 
to the American cause and character, in many parts 
of Europe." 

The struggle between the opposing parties was 
very animated, and resulted in the election of Jay 
in the spring of 1792 by a considerable majority of 
the ballots cast ; but the canvassers, mostly friends 
of Clinton, objected to accepting the votes of three 
counties which had been given for the Federal can- 
didate. The Constitution required that the different 
sheriffs should be annually appointed by the governor 
and council ; but, owing to various causes, this had 
not been uniformly done, and the practice had grown 
up for the old incumbents to continue performing 
ofificial functions until their successors had qualified. 



244 ^^^ Z//r£: AND TIMES OF JOHN JAY. 

The interval was at times but a few days, and rarely 
a long period. The sheriff of Otsego County had 
declined a re-appointment; but, as the new officer 
did not make his appearance on the scene before 
the election, he discharged the duties on that occa- 
sion. This was assigned as a reason for discarding 
the returns from that county. The votes of Clinton 
and Oswego were also rejected, — the one because 
the returns had been despatched by an unsworn 
deputy-sheriff, and the other because the messenger 
bearing them was taken sick upon the road, and had 
intrusted them to another person for delivery to the 
secretary of state at Albany. It was shown that 
custom had sanctioned such proceedings, and that, 
if the votes of either two of the counties were ad- 
mitted, the election of Jay was beyond cavil. Smith 
testified that he considered himself to be the sheriff 
of Otsego, and that he was in the daily practice of 
serving writs, and doing other business appertaining 
to the position. It was proven also that the sheriff 
of New York had once held office for six months 
after his commission had expired ; while that of 
Orange, at the former election for governor, had 
returned the ballots after his term, thereby seating 
Clinton in the chair of state. There was no pre- 
tence that the disputed votes had not been honestly 
and legitimately given ; and their rejection, therefore, 
made the voice of the minority override that of the 



CANDIDATE FOR GOVERNOR. 245 

majority. Forms of procedure are established as a 
necessary incident to the main purpose of ascertain- 
ing in a fair and satisfactory manner the sentiment 
of the larger number, and the very foundation of 
Republican institutions is shaken when these are 
warped to defeat the expressed will of the people. 

The political campaign had been conducted with 
extreme acrimony ; and the hesitation of the can- 
vassers, to ratify the choice of the citizens, excited a 
violent ferment throughout the State, and an angry 
discussion between the friends of the respective can- 
didates. Some of the most eminent members of the 
bar in Philadelphia were consulted by either side ; 
but the question of counting the suspended vote was, 
by agreement, finally submitted to the two New- 
York senators, — Aaron Burr and Rufus King : the 
one a supporter of the Republican party, the other 
a pronounced Federalist. After investigating the 
subject, the referees arrived at opposite conclusions. 
Burr, with legal acumen, rested his arguments upon 
the requirements of the Constitution, and was for 
having it literally observed ; while King, looking to 
its spirit, preferred to protect the rights of those for 
whose benefit it had been framed, and have their 
evident intention carried into effect. The canvass- 
ers, thus compelled to choose between two opinions, 
diametrically opposed, determined, as a matter of 
course, to follow the one which accorded with the 



246 THE LIFE AND TIMES OF JOHN JAY. 

political preferences of the majority, and, rejecting 
the returns from the three counties, by a vote of 
seven to four, declared Clinton to be legally elected. 
That gentleman was accordingly inducted into office. 
Upon the announcement of the result, great excite- 
ment was manifested on the part of the Federalists, 
the canvassers charged with corruption, and Clinton 
stigmatized as grasping authority rightfully belong- 
ing to another. The minority of the committee 
were not idle. They protested, and carried the mat- 
ter before the Legislature at the following session. 
A large number of witnesses, pi'o and con, were then 
examined ; and a discussion, lasting at intervals for 
many months, took place : but Clinton remained in 
the gubernatorial chair three years longer. The fla- 
grant wrong inflicted upon the people, with the door 
to fraud thus opened, should the State authorities at 
any time neglect or refuse to appoint sheriffs in 
opposition counties, aroused universal indignation 
among Jay's partisans ; and he was pressed by the 
more ardent to challenge the adverse decision, and 
assume the office — needful aid of every kind being 
assured. 

He was holding a circuit at Bennington, pending 
the determination of the canvassers, and reached the 
State soon after its promulgation, to find the most 
intense feeling on the subject. He was met by 
friends and supporters, at the various towns through 



CANDIDATE FOR GOVERNOR. 247 

which he passed, with addresses of welcome, and pro- 
tests against the recent proceedings, as being " in 
contempt of the sacred voice of the people, in defi- 
ance of the Constitution, and in violation of the 
uniform practice and settled principles of law." He 
had been a passive spectator rather than an active 
participant in the late canvass, and now, while real- 
izing the injustice done him, preserved a calm and 
dignified demeanor, counselling moderation on the 
part of all, with submission, and a strict obedience to 
the State law. Replying to the New- York address, 
he said, " In questions touching our Constitutional 
privileges, the social duties call upon us all to unite 
in discussing them with candor and temper, in de- 
ciding them with circumspection and impartiality, 
and in maintaining the equal rights of all, with con- 
stancy and fortitude," As he approached the city, 
he was received by a cavalcade of friends ; and at a 
public dinner, given him a few days later, when he 
rose to retire, the entire company, as a mark of re- 
spect, adjourned, for the purpose of escorting him to 
his dwelling. His conciliatory course during the 
crisis, while elevating him in the estimation of his 
fellow-citizens, prevented any illegal ebullition of 
popular feeling ; and the government of the State, 
under Clinton, proceeded without interruption for 
the remainder of the term. 



248 THE LIFE AND TIMES OF JOHN JAY. 



XVIII. 

RELATIONS WITH ENGLAND. 

GREAT BRITAIN, in the articles of peace with 
her late colonies, had contracted to arrange the 
boundaries between their respective possessions, to 
vacate with convenient speed all territory belonging 
to them, and stipulated that her forces should nei- 
ther carry off nor destroy private property on with- 
drawing from the country. The United States, on 
its part, agreed to earnestly recommend to the sev- 
eral States the restoration of sequestrated property, 
not already condemned, and to urge the removal of 
every impediment to British subjects collecting their 
debts from American citizens — the question of the 
mercantile interests of the two countries being left 
unsettled. 

Supposing that a Confederation which had carried 
the States through a seven years' war had sufficient 
authority to regulate their intercourse with other 
nations, Pitt, with the concurrence of the Shclburne 
ministry, early introduced into the Commons a lib- 
eral bill, modifying the Navigation Act, and adjusting 



RELATIONS WITH ENGLAND. 249 

commercial relations with America. It encountered 
the antagonism of Fox and most of his followers, 
though receiving the support of Burke in an able and 
statesman-like speech. Ere it had passed the House, 
the unnatural alliance between the Whigs and Tories 
was consummated, — a union of those who had en- 
deavored to subjugate the colonies, with a party that 
had steadily denounced them as fit for the scaffold. 
Fox, with a characteristic lack of discretion, made 
the preliminaries at Paris the occasion for displacing 
the cabinet, and inducting his friends and new allies 
into office. The further consideration of Pitt's bill 
was necessarily postponed, the ministry pledging 
themselves to introduce a satisfactory measure of the 
kind. The famous East-India Bill was, however, 
the more pressing ; and upon it the coalition was 
wrecked, leaving to their successors the task of 
conciliating America by carrying out the provisions 
of the late treaty. 

Pitt had driven his adversaries from power by 
combining with the more liberal Tories, and the 
character of his administration was thereby modified. 
The large opposition majority in the Commons, 
when he assumed office, demanded his constant at- 
tention ; nor until this was overcome, and his own 
India bill passed, could he turn his mind to other 
subjects. When the American question came again 
before him for consideration, he found a Confederacy 



250 THE LIFE AND TIMES OF JOHN JAY. 

scarce strong enough to stand among the nations of 
Europe, too weak to protect itself against unfriendly 
legislation, unable to comply with its treaty stipula- 
tions, or to enforce them upon its recalcitrant mem- 
bers. Without revenue and without credit, a division 
of the States was predicted. Each was now bidding 
against her sisters for the commerce of the world, 
and England's merchants already possessed every 
advantage to be looked for from any treaty with 
them. 

It was expected, that, with the restoration of peace, 
a traffic between the countries which had been 
mutually beneficial, would, with proper encourage- 
ment, revert in time to its old channels. America, 
however, had become a foreign power, and her 
citizens were not permitted the same freedom of 
trade with Great Britain as before the separation. It 
was still the age of prohibitory tariffs and colonial 
monopolies, and she was unable to impose contraven- 
ing restrictions in self-defence. Before the war, 
the British West Indies obtained their necessary 
supplies from the settlements on the main-land ; and 
since its close, a profitable interchange of products 
had again sprung up between the two. This was 
now interdicted by the naval authorities. Besides 
the constant irritation naturally growing out of the 
absence of any commercial arrangement, disputes 
arose from non-observance of the treaty negotiated 



RELATIONS WITH ENGLAND. 25 1 

at Paris. Britain retained military posts within the 
American borders, on the plea that obstructions to 
the collection of debts had not been removed, and 
that recent action on the part of some of the States 
had rendered this even more difficult than before. 
America responded, that, upon the evacuation of the 
country, slaves and other property had been carried 
off by the British forces, and further asserted that 
Congress had fulfilled its engagements, and ex- 
hausted its power, when it recommended a repeal of 
all enactments conflicting with the requirements 
of the treaty. 

After the dissolution of the commission at Paris, 
Adams, flushed with his successful diplomacy in Hol- 
land and France, sought the position of representative 
to the court of St. James, with the sanguine expecta- 
tion of adjusting these matters, as well as negotiating 
a commercial treaty between the countries. His 
presentation to the king as the first minister from 
the late colonies was an interesting event in their 
annals, and the addresses of both actors on the 
occasion were singularly appropriate and commend- 
able. Mr. Adams was evidently gratified with his 
part of the performance, and augured a successful 
result from his mission ; but no ambassador in return 
left England. 

Jay had by this time been appointed secretary 
of foreign affairs ; and he directed the minister to 



252 THE LIFE AND TIMES OF JOHN JAY. 

insist that America should be put in possession 
of all posts within her borders, and instructed him 
to remonstrate against the infraction of the treaty in 
carrying off the negroes. While thus pressing the 
just demands of the United States, he was not blind 
to their delinquency. In a secret report he said, 
" Every State has passed laws impeding, delaying, or 
forbidding the collection of British debts," and that 
the rescinding of all such should be recommended, 
and Adams authorized to say that this article had 
been violated, but that measures were being taken 
to remove every cause of complaint. Congress 
accepted his conclusion, and gave the requisite 
advice to the States. A majority of them repealed 
their laws on the subject, and others were consider- 
ing the matter when the new Constitution went into 
operation. With respect to the negroes, he reported 
that the title of the master had not been destroyed 
by their elopement with the troops ; that Britain 
ought to be excused for carrying them away, pro- 
vided she paid their full value, and he thought Con- 
gress might, with great propriety, insist upon this 
being done. 

Notwithstanding the pleasing prospect which 
opened upon the early part of his mission, Adams 
in a few months became convinced of the utter hope- 
lessness of accomplishing its object. Lord Shelburne 
in the Treaty of Paris had made liberal concessions, 



RELATIONS WITH ENGLAND. 253 

expecting thereby to detach America from France. 
This, as was seen, had failed ; and England was now 
disposed to recover, if possible, some of the territory 
then ceded, and confine the United States to the 
east of the Alleghanies. A re-action had set in ; 
and the mother was completely estranged from the 
daughter, and indifferent to her advances. Fox 
and Burke, even if willing, were powerless to render 
any aid ; and Pitt was no longer concerned about 
the relations between the countries. Jay wrote to 
Adams at the time of the Philadelphia convention, 
" Unblessed with an efficient government, destitute 
of funds, and without credit either at home or 
abroad, we shall be obliged to wait with patience for 
better days, or plunge into an unpopular and dan- 
gerous war, with very little prospect of terminating 
it by a peace either advantageous or glorious." To 
submit quietly to the present condition of things, was 
equally impossible ; and the minister was therefore 
instructed " to protract the discussion, and thus avoid 
a categorical answer which would force upon the 
United States a profitless war." In truth, the posi- 
tion of Mr. Adams had become extremely humiliat- 
ing. His remonstrances were unheeded by England : 
he was patronized by the French ambassador, and 
treated with cold civility by those of other powers. 
It is, therefore, not surprising that he was glad to 
escape from the perplexities of the situation, and 



2 54 THE LIFE AND TIMES OF JOHN JAY. 

return home to bury himself, as he expressed it, in 
" the most insignificant office that ever the invention 
of man "contrived, or his imagination conceived." 

As soon as the new government was settled, 
Washington requested Gouverneur Morris, then in 
Europe, to sound the British ministry on the subject 
of a commercial treaty, and the adjustment of all 
questions between the two nations. Provided with 
the necessary credentials, that gentleman held several 
interviews with Pitt and his secretary of foreign 
affairs, but found them indisposed to any arrange- 
ment. He fancied, however, that they would be glad 
to have America sever her connection with France, 
and form an offensive and defensive alliance with 
their country ; in other words, as a weak and second- 
rate power, place herself, like Portugal, under the 
protection of Great Britain. The only apparent re- 
sult of Morris's embassy was the advent of Mr. 
Hammond at Philadelphia, and the appointment of 
Thomas Pinckney the following year to fill the place 
left vacant by Adams at the court of St. James. 
It would have been well for England if she had been 
more liberal and enlightened, and had met these 
advances in the same friendly spirit with which they 
were tendered. She might thereby have secured, at 
least, the moral support of a nation whose friendship 
she declined, and thus have prevented the growth 
of a sentiment in America which led to hostilities 



RELATIONS WITH ENGLAND. 255 

between the countries, and was at last removed only 
by a conference in the city of Geneva, 

The king having been executed, and a republic 
proclaimed in France, a war broke out between that 
country and Britain, destined to spread over every 
state in Europe, and be finally extinguished upon the 
field of Waterloo. The Federal leaders, as we have 
seen, had lost faith in the principles and capacity of 
the rulers of France, and naturally drifted towards 
her opponent ; while the Republicans, looking on the 
bloody scenes enacted, as caused by the abuses of the 
Royal Government, sympathized with the efforts of 
their recent allies to establish liberal institutions. The 
interest of America imperatively demanded that she 
should stand aloof in the mighty struggle ; and, when 
information of the war reached him, Washington, 
after profound deliberation, determined upon main- 
taining entire neutrality, and in pursuance of this pur- 
pose, in April, 1793, issued a proclamation forbidding 
its infringement. His cabinet was equally divided ; 
and, as the chiefs of the two parties sat together at 
his council-board, it required all of the President's 
skill and personal influence to preserve harmony, and 
guide the ship of state in a steady course among 
the breakers. Each of the warring nations per- 
sisted in regarding the situation of America in a 
false light. Britain fancied the new government 
unwilling, or perhaps unable, as was the old, to afford 



256 THE LIFE AND TIMES OF JOHN JAY. 

her redress ; and France, assuming that the alliance 
between the countries pledged the United States to 
embark in her aggressive wars, proceeded to act as 
though this were admitted. Her masters apparently 
overlooked the fact that one of the parties to that 
compact had been obliterated, and that they them- 
selves claimed the privilege of choosing which 
treaties of the old monarchy they would recognize, 
and which repudiate. No American can at the 
present time read unmoved an account of the treat- 
ment which his country experienced at the hands of 
the belligerents. It seemed to be the aim of both 
to force her into the contest by continual aggres- 
sions upon her rights as an independent power. All 
rules which in times of ordinary warfare protect 
neutral nations, were brushed aside. Privateers, bear- 
ing commissions from the French ambassador, sailed 
from American ports, and captured British shipping 
along the coast, even at times when the pilot was on 
board, and the vessel within sight of her destination. 
The cruisers of France, roaming the ocean, seized 
merchant-ships freighted with American produce ; 
and Genet, supported by an intestine party, whose 
passions were artfully roused, insulted the President, 
telling him that he was "involved in a general con- 
spiracy of tyrants against P'rance," and that he had 
disregarded the laws of the Union. That min- 
ister employed counsel to defend American citizens 



RELATIONS WITH ENGLAND. 257 

before the courts, when prosecuted for the infringe- 
ment of neutrality ; and the remonstrances of the 
Executive against his proceedings were unheeded 
until a threatened appeal from the Government to the 
people resulted in his recall, thus for a season reliev- 
ing the authorities from their French annoyances. 

England, which, like Rome, aspired to rule the 
world, proclaimed that she was fighting, not only for 
her own existence, but for the liberties of all mankind. 
While protesting against the French violation of 
neutrality, she haughtily declined to fulfil the stipu- 
lation of the Treaty of Paris, and retained the West- 
ern posts, thereby encouraging, if not inciting, the 
Indians to inroads upon the frontier settlements. 
American sailors in her seaports were liable to im- 
pressment whenever a fleet was to be manned, and 
the consuls at those places were continually called 
upon to effectuate their release ; while vessels on 
the ocean were overhauled, their crew mustered, 
and the able seamen transferred to her men-of-war. 
Apparently with the purpose of driving the United- 
States' flag from the ocean, she interpolated the 
maritime code, gave a more stringent construction 
to the navigation laws, and enforced them with 
rigorous severity. Her cruisers, traversing every 
sea, captured, and sent into British ports for sale, 
all provisions bound for the coast of France. Her 
naval officers, seeking shelter or supplies in Ameri- 



258 THE LIFE AND TIMES OF JOHN JAY. 

can harbors, were insolent, overbearing, and defiant ; 
while the domestic coasting-trade seemed to exist 
only by permission of English officials, and com- 
merce with Britain was made to depend upon an 
annual proclamation of the sovereign. 

This condition of affairs was but too well calculated 
to inflame the public mind; and the fire was sedu- 
lously fanned by the Republican press, and the oppo- 
nents of the national administration in Congress. 
Secretary Jefferson's personal relations with the 
French ambassador were particularly cordial ; and 
it required some pressure from his fellow-members 
of the cabinet, to have the despatches to him colored 
with a suitable degree of vigor and force. The cor- 
respondence with Hammond, on the other hand, was 
quite formal, and, by the enumeration of grievances, 
contributed to keep disputes alive, rather than re- 
move their cause, and thus unite the two nations 
in the bonds of friendship. Before Jefferson with- 
drew from office, in 1793, things had reached such 
a pass that he deemed further negotiation with 
England at an end. Jay thought that country had 
"acted unwisely and unjustly," and would "not be 
surprised if war should take place." The preserva- 
tion of peace appeared almost hopeless. Washington 
viewed the situation with great apprehension, and 
resolved to send an ambassador of the highest char- 
acter to England, to adjust, if possible, all subjects 



RELATIONS WITH ENGLAND. 259 

of controversy, and, while determined to spare no 
honorable means to avert hostilities, recommended 
that steps should be taken to place the country 
in a satisfactory position of defence. In this wise 
purpose, he was thwarted by a party in Congress 
which seemed bent upon forcing the republic into 
a war, yet opposed every measure of preparation. 
The weapons on which they relied to obtain redress 
were commercial restrictions, sequestration of debts, 
and non-intercourse. Such were tried by later ad- 
ministrations, thereby alienating the people from 
their Government, and crippling trade ; nor until the 
course proposed by the first President had been 
adopted, did other nations respect the rights of 
America. 

Public sentiment was eminently hostile to Eng- 
land ; and all the statesmanship, tact, and firmness of 
Washington were required to overcome the obstacles 
placed in his path, aided, as the workers were, by the 
unwise proceedings of her authorities, and the un- 
happy temper of the British Resident at Philadelphia. 
He realized that a continuance of peace was neces- 
sary to the growth and development of the country ; 
and his greatness was never more strikingly dis- 
played than while directing the affairs of state, 
amid the exceptional difficulties that surrounded 
him. Retaliatory measures, necessarily leading to 
hostilities, were introduced, and had passed one 



260 THE LIFE AND TIMES OF JOHN JAY. 

branch of Congress, when he concluded to carry 
out his further purpose, and seek peace by negotiat- 
ing in London. The question of whom to suggest 
for this dehcate mission, was the subject of anxious 
consideration among the supporters of the admin- 
istration in the two Houses. The availabihty of 
Madison, Adams, Jefferson, Hamilton, for the work, 
was canvassed, and the latter was the unanimous 
choice. He, however, could not be spared at this 
time. Fortunately, the chief justice arrived in Phila- 
delphia at the moment, to open the Supreme Court ; 
and Hamilton, after sounding him, wrote to the 
President that Jay was "the only man in whose 
qualification for success there would be a thorough 
confidence, and him alone it would be advisable to 
send. I think," said he, "the business will have 
the best chance possible in his hands." He was 
accordingly chosen. It was thought that the prom- 
inent position he occupied, the reputation he had 
acquired in former negotiations, combined with the 
confidence reposed in his ability and integrity by 
the Government of his own country, would give 
weight to the embassy, and impress England with 
the gravity of the situation. 

The impropriety of intrusting the negotiation of 
a treaty to a person who might afterwards be called 
upon, judicially, to interpret it, does not seem to 
have occurred to the distinguished men whom Wash- 



RELATIONS WITH ENGLAND. 26 1 

ington consulted on the occasion. Indeed, so little 
was thought of the procedure, that the same course 
was followed by Adams in the selection of Jay's suc- 
cessor on the bench, as an envoy to revolutionary 
France. Its impolicy is now apparent ; but we must 
remember that the functions and relations of the 
co-ordinate departments of the Government were not, 
at the time, clearly defined. The Supreme Court 
had lately attracted but little attention, few cases 
being brought before it ; and the number of its ses- 
sions had, in consequence, been reduced ; nor do we 
even know the place of its meeting in Philadelphia. 
Its great importance as an independent branch of 
the national authority, and its reputation as the ex- 
ponent of Constitutional law, was only fully estab- 
lished at a later period, by a Webster, Marshall, 
Story, and a Wirt. 

Jay was in the meridian of life, with a healthy 
moral nature. His name was not associated with 
cabals ; and while true to his convictions, and ear- 
nest in the suppport of his political friends, he had 
never descended into the arena of party politics. 
He occupied the highest place in the public estima- 
tion. Filling a station in weight and dignity second 
only to that of the President, with varied experience 
at home and abroad, and a character which calumny 
had not dared assail, he was ranked with the first 
statesmen of the country, and bade fair to become 



262 THE LIFE AND TIMES OF JOHN J A Y. 

the successor of Washington. His appointment did 
not, it is true, meet the approval of some, who feared 
that the eclat acquired by a successful negotiation 
might land him in the executive chair. John 
Adams, anticipating a rival for that office, said, 
"If he succeeds, it will recommend him to the 
choice of the people as President." The atmos- 
phere was, however, loaded with detraction, slander, 
and obloquy, to be discharged upon his head, and 
that of the President who despatched him on his 
peaceful mission. 

Any agreement which might be effected, however 
favorable, would receive condemnation from those 
who were clamoring for hostilities ; and, as was hap- 
pily said, "Jay's success will secure peace abroad, 
and kindle war at home." The sympathizers with 
France had resolved that no treaty should be made ; 
and, before the envoy left America to negotiate one, 
the affiliated clubs, which had been established in 
imitation of the Jacobin of Paris, struck the key-note, 
and an unscrupulous press poured forth denuncia- 
tions of England, reprobation of the mission, and 
avowed a purpose of defeating any settlement. Even 
before the conditions of the treaty were known, the 
governor of Virginia indicated his antagonism by 
proclaiming that " no aid, assistance, or comfort 
should be given British ships-of-war stationed in 
our harbors;" and by legislative enactment, that 



RELATIONS WITH ENGLAND. 263 

State prevented a levy upon land for debt, thus 
almost debarring English creditors from collecting 
their claims from a people devoted to agricultural 
pursuits. 



264 THE LIFE AND TIMES OF JOHN JAY. 



XIX. 

THE TREATY WITH ENGLAND. 

JAY'S fitness for the task imposed upon him can- 
not be better illustrated than by an extract from 
Secretary Randolph's letter of instructions, "You 
have been," he wrote, "personally conversant with 
the whole of the transactions connected with the 
treaty of peace. You were minister at its formation, 
secretary of foreign affairs when the sentiments of 
the Confederated Congress were announced through 
your ol^ce ; and, as chief justice, you have been wit- 
ness to what has passed in our courts, and know the 
real state of our laws with regard to British debts," 

He carried with him the issues of peace and war, 
which weighty responsibility, fortunately, rested on 
a man of singular self-control, and soundness of judg- 
ment ; one who was well qualified to handle matters 
of great national importance. He was required to 
demand the evacuation of the posts ; compensation 
for spoliations already made, and its future abandon- 
ment ; to claim payment for the negroes who had 
been carried off contrary to the provisions of the 



THE TREATY WITH ENGLAND. 265 

treaty ; endeavor to have the question of debts 
referred to the tribunals of the United States for 
adjustment ; and, on no account, to conclude any 
treaty which did not open the coveted West-India 
trade, or which contravened the conditions of the 
alliance between France and America. All other 
subjects appear to have been left to the discretion of 
the negotiator. The instructions further read, that 
"you support the doctrine of government with argu- 
ments proper for the occasion, and with that atten- 
tion to your former public opinions, which self-respect 
will justify, without releasing the pretensions which 
have hitherto been maintained." This last had ref- 
erence to his report to Congress while secretary of 
foreign affairs. Having received his credentials, 
Jay, with his son as private secretary, sailed on his 
mission, leaving the remainder of his family under 
the care of his wife and nephew — a speedy return 
being anticipated. 

William Lord Grenville, a younger son of the pro- 
jector of the Stamp Act, was, at the time, the for- 
eign secretary of Pitt, his cousin ; and between 
the two the most confidential relations existed. He 
was a favorable specimen of the English statesman. 
Of good abilities and liberal education, thoroughly 
versed in ministerial duties, stately in bearing, of 
uncompromising principles and firmness of character, 
high-toned and honorable, and having matched his 



266 THE LIFE AND TIMES OF JOHN JAY. 

powers with many of the eminent diplomats of Eu- 
rope, he was no Hght antagonist for the American 
envoy to encounter. The latter, moreover, was 
weighed down by a divided public sentiment in his 
own country ; while Grenville possessed a knowledge 
of Congressional reports, and had the entire sym- 
pathy of the people of England. Ere their business 
was accomplished, each had learned to entertain the 
highest respect for the other. Jay at once notified the 
secretary of his arrival in London, held an interview 
with him and Pitt, and was most graciously received 
by the king. His first impressions were favorable. 

The negotiation was begun during the earlier part 
of 1794, but made no progress for some time. The 
tone of the public press in America, the intemperate 
utterances in Congress, with Genet's proceedings at 
Charleston, and enthusiastic reception by the citi- 
zens of Philadelphia, inclined the secretary to doubt 
the sincerity of the American Government in seeking 
peace. Recent successes against the French had 
inflated the cabinet, and adverse measures were in 
contemplation at the time of Jay's arrival ; but his 
efforts, combined with the high esteem in which the 
President was held, overcame them : and in August, 
he was informed that the ministry were prepared to 
settle the controversy, upon what they deemed just 
and liberal terms. Aware that any stand taken in 
writing is not willingly given up, Jay suggested the 



THE TREA TV WITH ENGLAND. 267 

advantage of holding verbal conferences, neither 
side being committed to any thing until an agree- 
ment should have been reached ; thus enabling them 
speedily to ascertain wherein they differed, and how- 
far a compromise could be effected. This mode of 
procedure, wise in itself, is annoying to a later gen- 
eration, who desire to penetrate the veil, and see the 
treaty in process of formation. Jay truly said that 
those alone who have levelled uneven ground, know 
how little of the work afterward appears. We should 
like to look back upon this levelling operation, to 
learn the attitude of each of the negotiators ; what 
demands, abatements, and concessions were made ; 
how far the American conformed to his instructions, 
and by what arguments he sustained the claims of his 
country. We know little more than that, after five 
months of alternate hope and discouragement, a 
treaty was signed, which caused as much clamor and 
vituperation at home as Bolingbroke's celebrated 
Treaty of Utrecht. In many respects it was not 
satisfactory to Jay himself ; but he was confident the 
English limit of concession had been reached, that it 
was the very best to be procured : and, painfully con- 
scious that the only choice was between an immediate 
adjustment and a war with England, he affixed his 
name to the document. He was familiar with public 
feeling in his own country, and must have foreseen 
that he was performing an act of self-immolation,. 



268 THE LIFE AND TIMES OF JOHN JAY. 

and placing at hazard every thing of a poHtical nat- 
ure ; as no treaty would be acceptable to large num- 
bers of his fellow-citizens, which did not yield to 
America every point in dispute. 

That the one just negotiated was objectionable in 
many of its provisions, must be admitted ; and fur- 
ther, that the United States thereby abandoned some 
of the important positions previously assumed. This 
was unavoidable. Pinckney wrote to the department 
from London, " As little has been conceded by Mr. 
Jay, and as much obtained by the United States, as, 
all the circumstances considered, could be expected." 
By the former treaty. Great Britain had stipulated 
that her troops should withdraw with all convenient 
speed ; yet for twelve years she had continued to 
maintain forts within the acknowledged boundaries 
of the Union, whereby the public mind was irritated, 
Indian hostilities encouraged, and the valuable fur- 
trade of the North-West diverted to her Province of 
Canada. The immediate evacuation of these posts 
should, it was affirmed by the opposition, have been 
required, instead of allowing two years longer for 
the purpose. The United States, it was claimed, 
obtained by the new treaty no other guaranty for 
a withdrawal from them than that already possessed ; 
and the lapse of time in complying with the stipula- 
tions made before, left room to suppose that some 
new plea might be found for retaining them after 



THE TREATY WITH ENGLAND. 269 

the date now agreed upon. Nothing was said about 
impressment. When she began the practice, Eng- 
land had professed only to secure crews for her 
ships from her own mariners when in port, and to 
arrest deserters from her navy ; but she had lately 
asserted the right to reclaim her seamen wherever 
found. It was almost impossible to distinguish in 
appearance those of the two nations ; and though 
comparatively few Americans had as yet been im- 
pressed on her men-of-war, the number increased 
with the immunity enjoyed. The moderate extent 
that it had yet reached, should, it was thought, have 
rendered the matter more easy of adjustment. Great 
Britain pretended to seize only her own subjects; 
and surely some plan could have been devised to 
prevent their shipment on board American vessels, 
thus removing all excuse for overhauling them. 
Impressment was a grievous wrong inflicted upon 
American citizens, a direct insult to their national- 
ity ; and hostilities between the countries ultimately 
resulted from the feeling that it engendered. 

Another fault found with the treaty, was the re- 
striction that it placed upon the re-exportation of 
merchandise received from the West Indies. While 
the parent state was engaged in war, these Islands 
depended upon the United States for essential sup- 
plies ; and it had been the practice for France to open 
her colonial ports during its continuance. By the rule 



270 THE LIFE AND TIMES OF JOHN JAY. 

that she established in 1756, and endeavored to 
ingraft on the law of nations, England held that 
commerce in time of war could not be permitted 
with any colony where it had been prohibited during 
peace. She now, in pursuance of this policy, con- 
ceded the right of small American vessels to trade 
at all times with her islands. So far, this was advan- 
tageous ; but when she undertook to interdict mer- 
chants selling abroad the produce thus imported and 
landed, she trespassed upon the right of a sovereign 
power to regulate its own commerce, imposed an 
onerous duty upon its revenue officers, and gave rise 
to a vexatious detention and search of its shipping 
upon the high seas. 

No provision was made for compensation for the 
slaves that had been carried off at the time of the 
evacuation, nor for their return. Their loss had 
been a sore grievance to the planting States, which, 
deprived of their labor, were the more unable to 
discharge their indebtedness to British merchants. 
England was placed on the footing of the most 
favored nation, which, in effect, permitted her to 
capture French property when found on board 
American vessels ; while France, on the other hand, 
was, by the treaty of alliance, debarred the same 
privilege. 

Two questions naturally arise. Should Jay have 
assented to a treaty against which such serious 



THE TREATY WITH ENGLAND. 27 1 

objections could be raised? and was it expedient 
for the United States to ratify it ? When the con- 
dition of the country is taken into consideration, the 
strong probability that hostilities would have ensued 
in the event of the negotiation failing, and the firm 
belief that no better terms could have been secured, 
both these questions must, we think, be answered 
in the affirmative. War is rarely expedient, and at 
all times to be deprecated and avoided if consistent 
with national safety. Commercial and most other 
treaties are essentially compromises ; and while 
America, in the one just concluded, relinquished 
a number of her claims, she gained many important 
advantages in return. Possession is proverbially 
nine points of the law ; and what England surren- 
dered, was virtually her own. She already held with 
a firm grasp the military posts at the West, as well as 
the merchandise she had captured. Her West-India 
commerce was prohibited to other nations. She 
exercised, unobstructed, the right of search and 
impressment, and the American flag waved on the 
ocean by her sufferance alone. America was not in 
a position to enforce any concession, and had no 
equivalent to offer for the abandonment of these 
pretensions. She had recently emerged from war, 
exhausted, and burdened with a heavy debt. The 
Constitution lately established had not yet acquired 
consistency and strength \ while two parties, bitterly 



272 THE LIFE AND TIMES OF JOHN JAY. 

hostile, divided public opinion, — the one advocating 
fraternity with France ; the other, more intimate 
relations with England, The administration had 
proposed to render the country independent of for- 
eign powers, but was thwarted in the prudent 
endeavor to place it in a state of defence before 
negotiating. Under the circumstances, a war could 
not prove other than disastrous, even if the national 
existence were preserved. She would have been 
compelled to throw herself into the arms of France, 
which torn by faction, and dripping with the blood 
of her people, seemed at the time likely to succumb, 
leaving England at liberty to wreak vengeance upon 
the late colonies. 

No treaty negotiated by America has been more 
heartily condemned, and none in its operation has 
proved more beneficial. Judged to-day by its results, 
it would meet the approval of all. Jefferson, Madi- 
son, and Monroe strenuously objected to its ratifica- 
tion ; yet each, when in the Executive chair, failed 
to obtain more favorable conditions. Their vain 
attempt is its strongest vindication. It prevented 
an inopportune war, in which by no possibility could 
greater advantages have been procured ; and obviated 
the necessity of a close alliance with France, and 
her consequent baleful military influence. It fixed 
neutrality as the settled policy in a contest that was 
to involve every nation of Europe, and allowed time to 



THE TREATY WITH ENGLAND. 27-^ 

cement the Union, and enable the new machinery 
of government to work smoothly. It restored more 
than two millions of dollars to American merchants 
which would have been sacrificed in the event of 
hostilities ; and, by paying this sum, Great Britain 
acknowledged the injustice of her recent proceed- 
ings, and waived the attempt to inject the rule of 
1756 into international law. The eight posts that 
she held were quietly given up at the appointed 
time. 

Morris, during his interview with the foreign 
secretary, after vainly protesting against the practice 
of impressment, had wittily said, " I believe, my 
lord, that it is the only instance in which we are not 
treated as aliens ; " and Pinckney, the Resident at 
London, had been unsuccessfully urging an adjust- 
ment of the question before Jay's arrival. Although 
the treaty was silent on the subject, no Republican 
administration was more successful in obtaining its 
abandonment. The war of 1812, undertaken in that 
interest, failed to change the British practice. Mr. 
Webster's emphatic letter to Lord Ashburton, alone 
removed this disturbing element between the coun- 
tries. In all negotiations down to a recent period, 
America was unable to secure better terms with 
regard to West-India shipments. Her efforts in that 
direction were fruitless. The progress of nations 
towards freedom in trade and more enlightened 



274 THE LIFE AND TIMES OF JOHN JAY. 

colonial legislation has since spread wide the door 
which Jay succeeded in only partially opening. 

It is quite significant that nothing was said about 
compensation for the deported slaves. Their dual 
condition as persons and property must always 
render this a difificult point to determine ; and it so 
happened, that a dispute of a similar nature arose 
under the Treaty of Ghent, which, after years of 
profitless discussion, was at last settled by compro- 
mise. Jay, as secretary, had directed Adams, when 
in London, to complain of their removal, and, in his 
report to the Continental Congress, declared that 
Britain, by the treaty of 1783, had bound herself to 
do a great wrong, and could only extricate herself 
from the dilemma by paying for them. This last, it 
was evident, Grenville did not intend doing ; and 
their restoration was impossible. He contended that 
no alteration in the status of any property was 
designed by the Treaty of Paris ; that every slave, 
like every horse, straying into the lines, established 
British ownership, as was the case with the negroes 
at the time of that Convention ; and further, that 
those who had been invited thither, and had had 
freedom conferred upon them, could not be returned, 
as they had been manumitted by competent authority. 
The argument seemed plausible ; but Jay, who had 
assisted in framing the first treaty, knew that Gren- 
ville's construction did not conform to the under- 



THE TREA TV WITH ENGLAND. 275 



standing had at the time. He said in his secret 
report, " Such negroes as fled from their masters, 
and were received and protected, are clearly compre- 
hended in the article, for the title of their masters 
was not destroyed by their elopement," and that the 
first violation of the treaty was on the part of Great 
Britain, by her troops carrying them away when they 
evacuated New York. Many of the negroes in ques- 
tion had been shipped by officers to colonial posses- 
sions, and there sold ; some had from time to time 
taken advantage of the disturbed condition of the 
country to effect their escape ; while others, claiming 
to be free, and employed as servants, followed the 
soldiers on their embarkation. Virginia had probably 
suffered more in this way than any of her sisters. The 
predatory incursions into her territory by Arnold and 
others, carried off great numbers. It so happened 
that her people were more largely indebted abroad 
than those of any other State ; and, as there seemed 
no way to secure payment for her slaves, a compro- 
mise was made in the treaty by the National Gov- 
ernment waiving all claim for compensation, and 
assuming the debts due by her citizens to English 
merchants, when passed upon by a mixed commission. 
An adjustment of the matter in this way, while 
unsatisfactory to individuals, was yet, perhaps, an 
equitable settlement of a complicated dispute be- 
tween the countries. The United States was the 









276 THE LIFE AND TIMES OF JOHN J A V. 

/ 

greatest loser, as it paid six hunrared thousand dollars 
under the ruling of the commission. 

The treaty further provided for reciprocal liberty 
of commerce between America and Britain, and 
opened to the former the valuable trade with the East 
Indies. This last concession was a great innovation 
on England's navigation laws, and one she refused to 
make in subsequent negotiations. For the first time 
in the history of the United States, provision was 
made for the extradition of criminals ; and it was 
also stipulated that no sequestration of debts should 
be permitted to either nation in the event of a war 
between them. 



THE TREA TV IN THE UNITED STA TES. 277 



XX. 

THE TREATY IN THE UNITED STATES, 

JAY wrote home frequently during the negotiation, 
but heard from the Government only at rare 
intervals. We may well imagine Washington's great 
desire for a peaceable adjustment, and impatience in 
awaiting the receipt of a treaty upon which the 
destiny of the country, the future course of his 
administration, and his personal comfort and happi- 
ness, seemed so largely to depend. Though executed 
in the autumn, it failed to reach America before the 
following spring, after the session of Congress had 
closed. As soon as it was received, he called the 
Senate together, and the document, with the accom- 
panying papers, was laid before it. After a discus- 
sion of some days, its ratification — except one article 
— was advised by a two-third vote. That body had 
already established a rule that all executive business 
should be conducted with closed doors, and had 
placed an injunction of secrecy upon its members. 
This was of special importance in the present in- 
stance, as the treaty had not yet been submitted to 



278 THE LIFE AND TIMES OF JOHN JAY. 

the cabinet, the President having simply consulted 
the Senate before determining upon his own action. 
In violation of the salutary regulation, and blind to 
the impropriety of the proceeding, a senator from 
Virginia furnished a copy to an editor of Philadelphia, 
in whose journal it appeared the following morning. 

Opposition to the provisions at once swept the 
country with the violence of a tropical hurricane. 
The abuse of the negotiator spread even faster than 
the publication of the terms. The waves of party- 
feeling rose still higher than before, and threatened 
by their fury to drive the ship of state from its moor- 
ings. Popular indignation was sedulously aroused. 
Meetings held in the more important places de- 
nounced .the treaty, and protested against its ratifi- 
cation. Jefferson pronounced it "execrable," "an 
infamous Act," and "stamped with avarice and cor- 
ruption." A copy of it was burned before the resi- 
dence of the British minister at Philadelphia ; and 
Jay, branded as a traitor, was dragged in efifigy 
through the streets, and condemned to a like indig- 
nity; while Charleston declared him worthy of the 
recently invented guillotine. 

Public reason was unseated. That a man who 
had resisted the encroachments of Britain at the 
hazard of every thing dear in life, who had with- 
stood the inordinate pretensions of Spain, who at 
Paris had demanded for his country the broadest 



THE TREA TV IN THE UNITED STA TES. 279 

recognition and the most extended boundaries, whose 
career was marked by probity and steady devotion 
to her interests, should be thus cahimniated, can 
alone be attributed to the rancor of party and the 
arts of the demagogue. The treaty supplied the op- 
position with a needed war-cry. They had not here- 
tofore dared attack the President, choosing rather 
to weaken his administration by denouncing its pro- 
ceedings, and professing to believe that he was 
hoodwinked into supporting them. The financial 
schemes of Hamilton had furnished them with formi- 
dable weapons, but the triumphant success of all his 
measures turned their arms against themselves. He 
smote the rock of national resources, and abundant 
streams of revenue burst forth. The charge against 
him of malfeasance in office had been rung through 
all its changes, but investigation raised him higher 
than before in public confidence. The virulence and 
indecency of the journals of that day would not be 
tolerated in this. All the vulgar abuse of party was 
poured into them. No character was sufficiently 
elevated, and no reputation sacred enough, to escape 
assault when it suited the purpose of their managers ; 
and the malignancy of the French Convention was 
reflected in the sheets of Cobbett and Freneau, 
Fenno and Bache. Every means had been em- 
ployed to secure the rejection of the treaty; and, 
before its conditions were divulged, Bache termed it 



280 THE LIFE AND TIMES OF JOHN J A V. 

"an imp of darkness, illegitimately begotten," and 
said, "If the Senate expect to cram it down the 
throats of the people, they mistake their objects." 
Its friends resorted from vituperation to argument ; 
and the controversy was removed from the hustings 
to the press, where it raged with intense and em- 
bittered feeling in volumes and pamphlets, essays 
and squibs. Among the most remarkable were the 
essays of "Decius" in opposition to it, and those 
of " Camillus " in its support. The knights who 
thus fought with their visors down, are known to 
have been the brother-in-law of Jay, and the late 
secretary of the Treasury. Jefferson, who, with 
deep interest, watched the engagement from afar, 
soon discovered that the first named was unable to 
cope with his redoubted adversary, and pressed 
Madison to enter the lists before he should be 
unhorsed ; but the latter was too wary to meet the 
Federal champion, and left Livingston to his fate. 
The essays of Hamilton still survive in American 
literature, though the occasion which called them 
forth is well-nigh forgotten. 

While Jefferson was urging his friends to the en- 
counter, Jay remained undisturbed. He seemed an 
unconcerned spectator, rather than a target for de- 
nunciation. The embittered hostility, of which he 
was the object, left not the slightest trace upon his 
mind ; his conduct being that of one who had con- 



THE TREATY IN THE UNITED STATES. 28 1 

scientiously performed a duty to his country, and 
then committed the result to the mature conviction 
of his fellow-citizens. He entered into no defence 
of the treaty, merely saying, "God governs the 
world ; and we have only to do our duty wisely, and 
leave the issue to him." Washington, too, preserved 
his equanimity. He consulted on this, as upon other 
occasions, the best interest of the nation intrusted to 
his keeping ; and after obtaining the opinions of 
those possessing his confidence, and weighing their 
reasons in the impartial scale of his own judgment, 
he affixed his signature, thereby constituting the 
treaty a supreme law of the land. Only once did he 
hesitate. News came that Britain had renewed the 
instructions to seize provisions bound for the coast 
of France. The information, however, proved false. 
In suppressing the whiskey insurrection the year 
before, and now in signing the treaty in the face of 
a violent opposition, he demonstrated to the world 
the efficacy and power of the government that had 
been recently established. 

Being thus ratified by the contracting parties, and 
proclaimed by the President, it was to be supposed 
that all clamor against the treaty would cease ; but 
it was destined to meet with a fiercer and more 
deadly hostility than it had yet experienced. As an 
appropriation by Congress was essential to carry its 
provisions into effect, it necessarily came before that 



282 THE LIFE AND TIMES OF JOHX JAY. 

body ; the House, where the Republicans were in a 
majority, taking the initiative. Edward Livingston 
— of whom we had a glimpse in childhood — was now 
a member from the city of New York, and, like most 
of the name, opposed to the administration. The 
debate arose upon his motion, requesting from the 
Executive, copies of all papers connected with the re- 
cent settlement. He supported it by an elaborate 
speech, claiming that the House was vested with the 
discretionary power of carrying the treaty into effect, 
or of refusing its sanction. The production of the 
papers was resisted, for the reason, that, under the 
Constitution, that branch of the Government took no 
part in the formation of treaties, the duty devolving 
upon the President and Senate. It was further ob- 
jected, that the documents called for were not essen- 
tial in making the necessary appropriations ; and 
that, if they were intended to be used for the purpose 
of impeachment, it should have been so stated in the 
resolution. This preliminary question called forth 
speeches of eloquence and ability by Madison, Ames, 
Gallatin, and others. Livingston's motion was finally 
passed by a large majority : but Washington declined 
to comply with it, upon the ground that it would 
establish a dangerous precedent ; that foreign nego- 
tiations always required caution, and sometimes de- 
pended on secrecy for their success ; and that the 
treaty-making power was, under the Constitution, 



THE TREATY IN THE UNITED STATES. 283 

confined to the President and Senate, This reply, 
assuming advanced Federal ground, seemed to sever 
all political relations between him and the leaders of 
the opposition. He had heretofore been treated by 
them with respect : henceforth no distinction was 
made between him and his advisers, and no public 
man was more vilely abused during the remainder of 
his administration. 

Upon receiving this response, the House re- 
affirmed their right to have the papers laid before 
them, and then took up the subject of making the 
necessary appropriation, which brought on a lengthy 
discussion. This was the first engagement between 
the hostile parties, untrammelled by consideration 
for the President ; and Judge Marshall says, " Never 
had a greater display been made of argument, of 
eloquence, or of passion." The bare mention of the 
names of some of the men who participated in it, 
will satisfy the reader that this legislative tourna- 
ment must have been brilliant in the extreme. 
After some preliminary skirmishing, Madison — a 
Federalist by nature, a Republican from associa- 
tion — opened the debate. He said that it was 
for the members to decide whether the general 
power of making treaties superseded the action of 
the House. The objections to the present one, he 
declared, were an absence of reciprocity, the debts 
due to British merchants being paid, while no pro- 



284 THE LIFE AND TIMES OF JOHN JAY. 

vision was made for compensating the owners of 
slaves that had been carried away ; the surrender 
of the right to levy discriminating duties ; the 
principle that free ships make free goods; and he 
affirmed besides, that it gave up the most effective 
weapon which a debtor nation, like the United 
States, could wield, when it stipulated that seques- 
tration should not be resorted to in the event of a 
war between the countries.' Giles, distinguished at 
all times as an uncompromising partisan, together 
with his colleague Nichols, and Gallatin, spoke on 
the same side. The latter frankly admitted that no 
new treaty could be negotiated were the present one* 
lost, but thought the danger of war ensuing there- 
from chimerical, and that, like other evils, it was 
conjured up to induce them to pass the bill. He 
did not arrogate for the House the power of conclud- 
ing treaties, but claimed for it a supervision over the 
action of those who negotiated them. He said that 
compensation had been allowed for every demand 
against the country, and all doubtful ones, on her 
part, abandoned ; and that America consented to 
receive the Western posts under conditions never 
before contemplated. He approved of the arrange- 

• Madison was embarrassed throughout the discussion, by the knowledge 
that the convention at Philadelphia, of which he was a member, had expressly 
declined to confer upon the House any supervision over treaties ; and the 
absence of this power had been urged, in his presence, in the one held at 
Richmond, as an objection to the ratification of the Constitution, 



THE TREA TV IN THE UNITED STA TES. 285 

merits made to pay for spoliations, thought justice 
should be done to British creditors, and essayed to 
demonstrate, by Vattel, that slaves, being by national 
law assimilated to real estate, cannot be made the 
subject of booty. Jefferson was so delighted with 
this speech, that he declared it worthy of a place 
among the papers of "The Federalist." 

The friends of the treaty in reply averred, that the 
first infraction of the former one had been made by 
States obstructing the collection of debts ; that 
Britain regarded the negroes as men, and not prop- 
erty, and that she would admit no liability for their 
payment. They argued that the principle, that free 
ships make free goods, had never been adopted by 
other nations as international law ; and even if, as was 
alleged, the list of contraband had been enlarged by 
the treaty, England had, on the other hand, stipulated 
to pay for the past spoliations, and refrain in future 
from a system so detrimental to American interests. 
She had, moreover, agreed to open her East and West 
India trade, which had heretofore been closed to all 
nations. While vessels of over seventy tons were 
prohibited from engaging in the latter, there was no 
restriction imposed on the former. No other nation 
participated in the trade ; and the privilege was de- 
nied her own subjects, unless belonging to the East- 
India Company. Goodhue, who resided in Salem, 
affirmed the trade was already great and profitable. 



286 THE LIFE AND TIMES OF JOHN JAY. 

That town alone had thirty vessels engaged in it, and 
there were perhaps three times as many in all the 
United States. As for the abandonment of seques- 
tration, on which Madison laid such stress, its enforce- 
ment would be unjust to individuals, and its exercise 
impolitic by a country like America, so greatly 
needing the use of those essentials, — capital and 
credit. Speaking of the effect likely to be produced 
abroad by its rejection, they maintained that if this 
treaty, made and ratified according to the provisions 
of the Constitution, should be violated, the United 
States would be regarded by the world as a faithless 
nation, which no contract could bind. 

The most effective speech was one delivered near 
the close of the discussion by Fisher Ames, whom 
his admirers fondly termed "the American Burke." 
Afflicted with consumption, and unable to attend 
during the early part of the session, his physician 
had forbidden his engaging in the debate. His 
room-mate. Judge Smith, says that he had no in- 
tention of addressing the House, and spoke without 
premeditation, apparently impelled by feelings that 
he could not resist. When he arose, he was so 
feeble as to be hardly able to stand, and leaned upon 
the desk while delivering his address. It was dis- 
tinguished alike for its earnest pathos, comprehensive 
knowledge of human nature, and of the motives 
of political action. He spoke of the inconsistency of 



THE TREATY IN THE UNITED STATES. 287 

negotiating a treaty, and then defeating its operation 
by neglecting to carry its provisions into effect. 
This could only be regarded, he said, as a breach 
of national faith. He alluded to the large sums to 
be paid under it to American merchants, the im- 
mense gains to be secured by neutrality, and there- 
fore deprecated a policy which would exchange these 
for a war that threatened not only the peace of the 
country, but even the national existence. He de- 
picted the horrors of an Indian outbreak, should the 
bill fail, and thought that the responsibility for this 
would rest upon the House. In conclusion, he said, 
" No member but will think his chance to be a wit- 
ness of the consequence greater than mine ; yet, if 
the vote of rejection should pass, even I, slender 
and almost broken as my hold on life is, may outlive 
the Government and Constitution of my country." 
Vice-President Adams, who sat beside Judge Iredell 
of the Supreme Bench during this speech, wrote, 
"The judge exclaimed, *I never heard any thing so 
great since I was born!' — 'It is divine,' I said. 

No dry eye in the House except among the ." 

Venable of Virginia moved an adjournment, "lest 
the House should vote under the influence of a 
sensibility which their calmer judgment might con- 
demn." Considering the nature of the assembly, 
and the intensity of party predilection, no stronger 
testimony to the eloquence of the speaker could 



288 THE LIFE AND TIMES OF JOHN JAY. 

have been given. His emaciated form, and the 
pallor of death on his face, enlisted the deepest 
sympathy; and tradition for many years claimed 
" Ames's speech on the British treaty " as the most 
powerful ever delivered in Congress. 

The policy of the friends of the treaty had been 
to lengthen the discussion, in order to give the 
mercantile and conservative voice of the country 
an opportunity of being heard. The violence with 
which it had been assailed, was in time followed by 
a re-action. Thoughtful men came to realize the 
danger to be apprehended if it were not carried into 
effect ; and many who were opposed to its provisions, 
now that it had been ratified according to the terms 
of the Constitution, were desirous that it should 
become operative. Expression was given to these 
sentiments by petitions which doubtless had their 
weight with those members who were looking for- 
ward to an election to the succeeding Congress. 
Reviewing the debate at the present time, one is 
impressed by the close adherence of all to the 
question before them. The discussion lasted for 
eight weeks, almost to the exclusion of any other 
business ; and out of the large number of speeches, 
there appears absolutely no departure from it. The 
resolution offered by Livingston, calling for the pro- 
duction of the papers, had passed the House by a 
vote of 62 to 37 : the bill making the appropriation 



THE TREATY IN THE UNITED STATES. 289 

essential to render the treaty effective by one of 
51 to 48. All the New-England members, except 
four, voted for it, together with a majority of those 
from the Middle States, and four from the South. 
Virginia being the most aggrieved, her representa- 
tives unanimously opposed it. Her numerous rivers 
emptying into the Chesapeake, brought her large 
planters — the leaders of her people — into direct 
connection, as importers, with the merchants of Eng- 
land; and there can be little doubt that the subject of 
British debts exercised great influence on the occa- 
sion, nor that it furnishes a clew to many obscure 
points in American legislation, dating from the Peace 
of Paris. Indeed, it would hardly be too much to 
say, that the geographical division of parties in the 
country prior to 1800, may, to some extent, be traced 
back to it as well as to the slavery question. 

The present decision neither affirmed nor denied to 
the House a supervision over treaties when its action 
is needed to render them operative. The matter 
rests to-day precisely where it did ninety years 
ago. When the Louisiana purchase treaty came 
before the Eighth Congress, in 1803, the situation 
of the political parties was reversed, the Repub- 
licans resting their support of it mainly on the 
advantages likely to be derived from the acquisition. 
As their opponents did not dare assume different 
ground from that occupied by them ten years before, 



290 THE LIFE AND TIMES OF JOHN JAY. 

they based their objection to the payment upon the 
defective title of France, and the uncertain extent 
of the domain conveyed. A case more striking, as 
involving no party fealty, arose in the Alaska pur- 
chase. The treaty negotiated by Mr. Seward, stipu- 
lated that the inhospitable territory should be 
transferred by Russia before the consideration had 
been paid. The United States, under this provision, 
was placed in possession of the country, and the 
President's proclamation issued declaring the treaty 
a supreme law of the land. The bill appropriating 
the amount came before the House in December, 
1867, and was discussed from time to time for six 
months. A preamble was at last attached, saying 
that "The stipulations of said treaty are among the 
subjects, which, by the Constitution of the United 
States, are submitted to the power of Congress, and 
over which Congress has jurisdiction ; and it being 
for such reasons necessary that the consent of Con- 
gress should be given to said stipulations before the 
same can have full force and effect, and having taken 
into consideration the said treaty, and approving the 
stipulations therein to the end that the same may be 
carried into effect," etc. When this reached the 
Senate in due course, they refused to concur in any 
measure which implied that the approval of the 
Representatives was indispensable, and, a committee 
of conference being appointed, agreed to the follow- 



THE TREATY IN THE UNITED STATES. 291 

ing substitute : " Whereas said stipulations cannot be 
carried into full force and effect, except by legislation 
to which the consent of both Houses of Congress is 
necessary," etc. This being reported to the House 
by their committee, extreme opposition was at once 
manifested to the phraseology ; and its passage was 
secured, only by the application of the previous 
question, with the assurance that the Senate was 
unyielding. The majority in its favor was but forty- 
three, one-third of all the members being absent, 
or not voting. 

Forty years after the time of Jay's treaty, the 
same Edward Livingston, who had first raised the 
point, found himself under the necessity of assum- 
ing, with President Jackson, the extreme position 
which the Federalists had then held, and exacting 
from France the fulfilment of the one negotiated 
by Mr. Rives with the king, Louis Philippe, but for 
which her Chamber of Deputies had failed to make 
the needful appropriation. A treaty is a law made 
by the President and Senate ; and to a demand for 
its observance, it would seem to be no answer to say 
that the legislative branch of the Government is 
dissatisfied with its terms. The United States in 
its international relations is a single political being, 
which, through its official organs, expresses its will, 
and assists in forming a treaty. The Constitution 
of the United States declares that those made in 



292 THE LIFE AND TIMES OF JOHN JAY. 

pursuance of it shall be the supreme law of the land ; 
and surely, if supreme, they must be paramount, and 
no recognized body in the country — not even 
Congress — is exempt from their operation, however 
much opposed to the provisions. The soundness 
of this construction would have been manifest had 
Congress refused the sum agreed to be paid in the 
case of the Alaska purchase. The treaty had been 
negotiated with the requisite formalities, approved 
by the Senate, proclaimed by the President, and the 
Government placed in possession of the territory. 
By the law of nations, a refusal under the circum- 
stances to pay might properly have been deemed 
by Russia a casus belli. 



GOVERNOR OF NEW YORK. 293 



XXL 

GOVERNOR OF NEW YORK. 

WHEN Clinton's term as governor drew to a 
close, Jay was still abroad. He was recog- 
nized by the Federalists of the State as the proper 
successor ; and the manner in which he had been 
deprived of the honor three years before, created a 
general desire among them that he should become 
a candidate. He had retained the position of chief 
justice ; and having never expressed his wishes, nor 
been consulted about the matter, the party managers 
were free to nominate the most available person. It 
was generally supposed that he would be successful in 
the negotiation, but that at the same time he would 
be compelled to recede from some of the claims put 
forward on the part of his country ; and it was feared 
that the opposition would seize upon any concessions 
to excite a clamor throughout the State, render him 
unpopular, and possibly defeat his election. The 
national parties in New York were, at the time, 
nearly balanced ; and, should the treaty arrive during 
the canvass, its influence thrown into the scale might 



294 THE LIFE AND TIMES OF JOHN J A V. 

prove decisive. Though all conceded Jay's ability 
and fitness for the office of governor, there were yet 
grave doubts entertained as to the expediency of 
placing him on the ticket ; but, while the politicians 
hesitated, his spontaneous nomination in different 
counties forced the legislative caucus to ratify the 
selection of a candidate thus presented by the peo- 
ple. The large and influential Livingston family 
was now thoroughly allied with the Republicans ; and 
it was anticipated that the struggle for the mastery 
of the State would be earnest, and provocative of a 
great deal of feeling. That party would certainly 
strive by every means to retain their hold upon it ; 
while their opponents would be equally determined 
to drive them from power, and ultimately secure 
its electoral vote for a successor to Washington. 
Clinton, warned by experience, was too wary to meet 
the issue in his own person ; and Robert Yates was 
chosen by his political friends as Jay's competitor. 
He was a favorite with the people, had been a dele- 
gate to the Philadelphia Convention, but withdrew 
before its labors were concluded, and was now at 
the head of the judiciary of the State. Washington 
had written to Jay in London, that, at the conclusion 
of the treaty, he wished him to become minister 
resident in the place of Pinckney. He had declined 
the position ; but his detention in England gave color 
to the objection raised by his opponents, that he 



GOVERNOR OF NEW YORK. 295 

intended remaining abroad in order to exchange the 
ratifications. Stephen Van Rensselaer, the Patroon, 
and son-in-law of Schuyler, was nominated lieutenant- 
governor on the Federal ticket. The election took 
place in the spring of 1795, when Jay received a 
large majority of the popular vote ; and, in conform- 
ity with law, the legislative canvassers declared 
him governor two days before his arrival at the me- 
tropolis. Its citizens had just passed through an 
excited canvass ; his supporters were flushed with 
victory ; and, on landing, their distinguished towns- 
man was received with the greatest enthusiasm. 
Bells were rung, cannon fired, and a large crowd 
escorted the newly chosen officer to his home. There 
can hardly be a doubt that he would have been 
defeated by a majority quite as large as that by 
which he was elected, had the stipulations of the 
treaty been known ; but the long delay in its 
arrival probably saved him this mortification. Jay's 
allegiance to the Federal party had been given on 
principle. He was on terms of close friendship with 
its leaders, and upheld the administration of Wash- 
ington, not less from affection and admiration for 
the man, than from approval of his national policy. 
Until the conditions of the treaty were divulged, a 
successful career as governor seemed to place the 
most elevated position of the country within his 
reach ; but the feeling that it aroused was too deep 



296 THE LIFE AND TIMES OF JOHN JAY. 

and embittered to immediately subside. The heir- 
apparent of Federal leadership was buried under a 
mountain of prejudice, and the elder Adams suc- 
ceeded to the inheritance. 

In the summer of 1795, Jay laid aside his judicial 
robes to assume the executive duties of the State. 
Soon after his induction into office, the fearful pes- 
tilence which had lately scourged Philadelphia, made 
its appearance in the city of New York ; and during 
its prevalence, he remained there, laboring energeti- 
cally to prevent its spreading, by having the infected 
removed, the streets cleaned, and sanitary regula- 
tions strictly enforced. His active measures fortu- 
nately stayed its progress. Upon its abatement, his 
deep and earnest nature was displayed by a procla- 
mation, setting apart a day for fasting, prayer, and 
thanksgiving. This had been frequently done by 
the Continental Congress, and later by Democratic 
governors, but the proceeding was at that time a 
novelty in New York ; and, though Jay disclaimed 
any official authority to take the step, his action was 
violently assailed by the Republican journals as an 
undue assumption of power. 

The Legislature assembled in the city in the be- 
ginning of the following year. The new governor 
in addressing it said, "To exercise the powers vested 
in me with energy, impartiality, and freedom, are 
obligations of which I acknowledge the full force." 



GOVERNOR OF NEW YORK. 297 

He expressed his determination to regard all of his 
fellow-citizens alike, to cherish and advance merit 
wherever found, to consider the National and State 
Governments as established by the will of the people, 
and pledged himself to respect and support their con- 
stituted authorities. Three points urged upon public 
attention from time to time, mark him as among the 
leading benefactors of his native State, — the peni- 
tentiary system forming a new era in criminal juris- 
prudence, the policy of internal improvements, and 
the gradual abolition of slavery. But a higher test yet 
remained to distinguish between the politician and the 
statesman, between the head of a party and a con- 
scientious ruler. Clinton had presided over the State 
since the framing of the Constitution, and the sub- 
ordinate positions under him were occupied mainly 
by Republican partisans. The New- York maxim, 
"To the victors belong the spoils," had not as yet 
been enunciated ; but the Federalists, having over- 
thrown their adversaries, not unnaturally expected 
to gather some of the fruits of their victory. Jay's 
announcement of his intention to make no removals 
for political consideratixjns, therefore disappointed 
and chagrined large numbers. He had not been 
present during the recent canvass, had made no 
promises, and now adhered firmly to the determina- 
tion he had before avowed. During his six years' 
term of office, not one incumbent was dismissed 



298 THE LIFE AND TIMES OF JOHN JAY. 

except for proper reasons. So long as they dis- 
charged their duties with fidelity, they were sure 
of retaining their positions. It is related, that when 
a member of the council was recommending an 
applicant, because of his zeal and usefulness to the 
Federal cause, the governor interrupted him, saying, 
"That, sir, is not the question. Is he fit for the 
office .'' " It must not, however, be inferred that Jay 
was not an earnest party man. His convictions were 
too strong for him to be otherwise. He believed 
the one to which he belonged identified with the 
best interests and stability of the country ; and, while 
it is certain that he made no removals for political 
expediency, it is equally certain that he took care 
that all vacancies occurring should be filled by 
competent Federal adherents. He enjoyed, with 
Hamilton, the confidence of the first President, 
who, it was understood, consulted them about the 
appointments in New York ; and they thenceforth 
shared between them the moderate national patron- 
age within the State. Jay had the satisfaction of 
tendering to this tried friend a position in the 
United-States Senate, which Hamilton was, how- 
ever, under the necessity of declining. Toward the 
close of his first term as governor, the political 
campaign was opened with great vigor. The rec- 
titude and ability displayed by Jay had won the 
respect of the citizens, and he was again nominated 



GOVERNOR OF NEW YORK. 299 

by his party friends as their candidate ; " being 
regarded," said an address soHciting his compHance 
with their wishes, "as one whose attachment to 
their Hberties has been uniform, whose firmness in 
prosecuting them inflexible, and whose integrity in 
every part of his official conduct is unimpeachable." 
His competitor on this occasion was Chancellor Liv- 
ingston. The selection of the latter by the Repub- 
licans was both painful and embarrassing to Jay. 
Their friendship in early life, and intimate social 
and political relations, down to a recent period, 
rendered him very reluctant to engage in such a 
rivalry. The chancellor was rich, ambitious, influ- 
ential, with fascinating manners, and is said to have 
been one of the most eloquent men of the time. 
He had been foreign secretary, was an efficient agent 
in promoting the adoption of the Constitution by 
the State of New York ; yet Washington, in filling 
the important offices at home and abroad under the 
new government, had entirely overlooked his merits. 
The appointment of Jay as chief justice instead of 
himself, had, it was thought, alienated him from 
the Federal party ; and he was thenceforth, with the 
greater number of the name, identified with its 
rival. During the former canvass, partisans had, 
for their own purposes, endeavored to separate still 
further these ancient associates by covert insinua- 
tions in the daily press, which Jay had felt called 



300 THE LIFE AND TIMES OF JOHN JAY. 

upon to notice. It was with a feeling of reluctance 
that Jay entered upon the contest. He had been 
looking forward to a withdrawal at the end of 
the term ; but as the attitude of France toward 
the United States threatened hostilities, and de- 
manded military preparation, a sense of duty to 
the State and National Government forbade the 
indulgence of his inclination. The outburst of pop- 
ular indignation, which had been roused by the 
London treaty, had to a great extent subsided as 
men realized its beneficent workings ; but political 
invective was abundantly supplied his adversaries by 
the measures of Mr. Adams, who had lately become 
President. Such, however, was the public confidence 
in the purity of Jay's administration, that he was 
re-elected governor by 2,382 majority. 

Few events worthy of record had transpired dur- 
ing his first term as governor. The one on which 
he was now entering was noted for the organization 
of the common-school system, the removal of domes- 
tic servitude from the State, the quasi war with 
France, and the disruption and consequent overthrow 
of the Federal party in the nation. The first two 
measures were largely due to his personal influence. 
He had always favored the diffusion of education, 
believing that the continuance of American institu- 
tions depended upon the virtue and intelligence of 
the people. As a private citizen, he had incurred 



GOVERNOR OF NEW YORK. 30 1 

the expense of instructing many of the poor children 
in the neighborhood of his own home, and was ex- 
tremely gratified when, near the close of his admin- 
istration, the Legislature recognized its duty, and 
authorized the sum of a hundred thousand dollars 
to be raised — one-eighth of which was to be lodged 
with the University for distribution among the acad- 
emies of the Commonwealth, and the remainder 
applied to the encouragement of the public schools. 

The First Congress, inspired by a detestation of 
arbitrary power, resolved that the people of the sev- 
eral colonies should lend no further aid to the pros- 
ecution of the slave-trade ; and Jefferson, in the 
original draft of the Declaration, denounced it as 
one of the wrongs inflicted by the king upon them. 
Jay's views extended even farther than prohibiting 
the continuance of such a traffic, and had long been 
a steady advocate for the abolition of slavery within 
the State. While striving to release his country 
from foreign rule, he deemed it inconsistent to hold 
his fellow-beings in bondage ; and it was probably 
owing to his enforced absence, that no provision to 
this end was made in the State Constitution. He 
had, when first abroad, emancipated his own slaves ; 
and, since his return home, it was his habit to pur- 
chase his servants, and, by setting aside their wages, 
enable them, in time, to secure their freedom. 
While secretary of foreign affairs, the question of 



302 THE LIFE AND TIMES OF JOHN JAV. 

consecrating the North-Wcst territory to free labor 
was before Congress ; and, with his firm conviction of 
the policy of such a measure, we may be sure that his 
powerful influence was exercised in favor of the ordi- 
nance prepared by Dane for that purpose. Yates 
alone, from his own State, voted against it. Jay had, 
a little earlier, been chosen president of a society to 
promote manumission, but when appointed chief 
justice, fearing that some subject might be brought 
before him for adjudication in which it was interested, 
had severed his connection with that organization. 
As soon, however, as he was elected governor, he used 
his utmost exertion to carry out a purpose that he 
had so much at heart, but only after repeated failures 
in the Legislature was this accomplished. He now, 
in January, 1799, had the great satisfaction of giving 
his official sanction to an Act which removed forever 
this incubus on the progress and prosperity of New 
York. 

Monroe, who replaced Morris in France, had com- 
promised his government by affiliation with the 
French rulers, and was, in consequence, recalled. 
From the time of his leaving that country, its author- 
ities treated the United States in a manner befitting 
a dependent province rather than a friendly nation. 
Actuated by a sincere wish to preserve peace. Presi- 
dent Adams despatched three commissioners to Paris, 
who, upon their return, reported that a treaty could 



GOVERNOR OF NEW YORK. 303 

only be negotiated by America's advancing large 
sums to the French treasury, besides giving douceurs 
to the directors and their satellites. The knowledge 
of the failure of the mission was soon followed by 
the news that a decree had been prepared by France, 
authorizing the capture of all vessels having on 
board goods of British origin, and that privateers 
were commissioned to prey upon American com- 
merce. While the nation, generally, was aroused to 
the highest pitch of indignation by these hostile 
measures, the opposition in Congress were inclined 
to excuse them the more readily, as they mainly 
represented an agricultural constituency with little 
shipping, and were, therefore, unlikely to suffer any 
loss from them. " The reign of terror " had startled 
and shocked the other side, which dreaded the ex- 
ample upon their own people. Its leaders "lost their 
heads " as completely as the victims at the Place de 
la Revolution ; and, though a new act in the drama 
had begun at Paris, they were still apprehensive. 
In opposition to Hamilton's judgment, a measure 
was introduced in Congress, designed to protect the 
country against the numerous French residing in it, 
who, although not naturalized, were yet meddling 
offensively in national concerns. In its progress 
through the Houses, its scope was so enlarged as to 
embrace all aliens, giving the President control over 
their persons, and authorizing him, in certain contin- 



304 THE LIFE AND TIMES OF JOHN JAY. 

gencies, to transport them home, as is now done 
with improper classes of emigrants. Large numbers 
of Irish implicated in the outbreak were, at the time, 
fleeing to America ; and the loyal adherence of their 
countrymen to the Democratic party dates from that 
time. Not satisfied with this, the members pro- 
ceeded still farther, and, forgetting Bacon's warning 
against attacking the press, passed another Act, 
which made it criminal to speak or write any thing 
false or scandalous, with intent to bring odium upon 
the Executive or either branch of Congress. They 
somewhat mitigated its harshness by permitting the 
truth of the libel to be introduced in evidence, and 
making the jury judges of both the law and fact. 
This last measure was supposed to be aimed par- 
ticularly at certain notorious characters. 

The military spirit of the people was aroused by 
the proceedings of their former ally. Warlike prep- 
arations were made, and Washington appointed gen- 
eral-in-chief of the proposed army, with Hamilton as 
second in command. In view of the critical condi- 
tion of affairs. Governor Jay, in the summer of 1798, 
called an extra session of the Legislature, when the 
House, at his suggestion, unanimously pledged the 
support of the State in maintaining the rights and 
honor of the nation. The city had heretofore been 
without defensive works ; but it was now determined 
to erect fortifications, and otherwise prepare for a 



GOVERNOR OF NEW YORK. 305 

conflict which seemed inevitable. Nearly a million 
and a quarter of dollars were appropriated for military 
purposes, to be expended under the supervision of 
the governor, and deducted from the sum which, 
under Hamilton's adjustment, had been proven due 
the General Government from the State. All this 
precaution was happily unnecessary. President 
Adams, who had declared that he would send no 
fuither mission to France until he had received as- 
surances of a reception becoming the dignity of the 
couniry, upon a slight opening, changed his policy, 
to the unalloyed satisfaction of the Republicans ; and 
this altered attitude, combined with other causes 
to te named, led to the division and consequent 
downfall of the Federal party. 

It IS now time that we should revert to the politi- 
cal movements bearing upon the coming Presidential 
election. 



306 THE LIFE AND TIMES OF JOHN JAY. 



XXII. 

ELECTION OF JEFFERSON. 

'T^HE year which followed Jay's second inaugu^a- 
-*- tion as governor was one of unsurpassed political 
excitement in the United States. Adams, whore Dr. 
Franklin aptly described as " always an honest man, 
often a wise one, but sometimes and in some things 
absolutely out of his senses," was approaching the 
end of his term as President, and public attentior was 
absorbed in the task of choosing a successor He 
had unfortunately received from the previous admin- 
istration all of his cabinet officers, while Hamilton 
still retained their allegiance, and was recognized by 
them as the head of the Federal party. The President 
looked upon this leadership as a continued menace, 
and aspired to occupy the position himself; but 
vain, irritable, without tact, and incapable of acting 
upon any fixed system, he had but a slight hold upon 
the affection of those whom he desired to represent. 
Fortuitous circumstances had formerly secured his 
selection as Vice-President, in which capacity there 
was nothing to call for an exhibit of his infirmities ; 



ELECTION OF JEFFERSON. 307 

but, when occupying the higher office, they soon 
became manifest. Had he been endowed with politi- 
cal sagacity, he would have drawn Hamilton to his 
side, and have given heed to his counsels. As this 
latter statesman possessed in a marked degree the 
confidence of the most distinguished men of the 
party, they would have been induced to support 
the administration, thus preventing the breach which 
ensued. Jefferson essayed to estrange the two still 
more, but Madison failed to deliver his letter to 
Adams. We have no means of knowing what was 
accomplished in that direction at a personal inter- 
view, but the urgent interference of Washington 
was subsequently found necessary to secure Hamil- 
ton's appointment as his second in military rank. 

At the time of Adams's election, a sectional feel- 
ing, destined in the future to work so much evil, had 
already been developed ; and he in consequence re- 
ceived from States south of the Potomac, but two 
electoral votes. New York had given him her twelve, 
yet the entire majority over his competitor was but 
three in all the colleges. The national parties were 
not unequally matched in the State ; and it was 
evident, that, could its vote be diverted to Jefferson 
in the next contest, his victory would be assured. 
Hence, strenuous efforts were made to accomplish 
this end, and for months society was like a seething 
caldron. The trouble with France had, for the 



308 THE LIFE AND TIMES OF JOHN JAY. 

moment, swelled the numbers of the Federalists, 
and closed up their ranks ; but the capricious course 
of the President, and the violent disruption of the 
cabinet, rent them asunder, never to be re-united. 
Gov, Jay had won the respect of his constituents ; 
and, even though he withdrew from the position, 
his friends would doubtless have retained authority 
in the State, in spite of any efforts made for their 
displacement, but for the unwise and intemperate 
proceedings of the national Executive. Indeed, dur- 
ing the French excitement, it seemed almost certain, 
that, after the local election, they would have a 
majority in the new Legislature, and thus retain for 
their candidate the electoral vote of New York. 
This pleasing prospect was soon obscured. When 
its people found Mr. Adams sternly enforcing the 
Sedition Law, and exercising the power it conferred 
in an unfeeling manner upon one of their most 
esteemed citizens, they turned with disgust from a 
party which they held responsible for its enactment, 
as well as for this violent procedure. 

The permanent ascendency which the Republicans 
seemed to have acquired in the metropolis, had been 
wrested from them, in the spring of 1799, by the 
unpopularity of a scheme of Burr's, already con- 
spicuous in the State as an unscrupulous political 
tactician. He had been a member of the assembly 
the preceding year, and, under the pretence of sup- 



ELECTION OF JEFFERSON. 309 

plying pure and wholesome water, obtained a charter 
which enabled the corporators to engage in banking. 
In consequence of the feeling this aroused, he did 
not dare present himself again as a candidate, but, 
with great tact and unwearied efforts, succeeded in 
healing divisions in his party, and nominating a dele- 
gation for the assembly, which embraced the Republi- 
cans most eminent for wealth, station, or family 
influence. Gov. Clinton headed the list ; and among 
his associates were Gen. Gates, Brockholst Living- 
ston, and other well-known citizens. The ticket chal- 
lenged public confidence ; and its success was further 
promoted by the newly established bank, which 
accommodated the Republican merchants with dis- 
counts they would otherwise have been unable to 
obtain. The result followed which Burr had antici- 
pated. The Federal majority of the last year was 
overcome, and New-York City secured by the Repub- 
licans, giving them control of the State. Adams 
subsequently received but four electoral votes south 
of Maryland, and Jefferson became his successor. 
Burr, to whose untiring exertions this great victory 
was due, was thereby inducted into the office of 
Vice-President. 

At that time, the Legislature appointed the elect- 
ors for the State ; and the Republicans, then antici- 
pating a defeat, had at a previous session advocated, 
that, for the future, these should be chosen directly 



310 THE LIFE AND TIMES OF JOHN JAY. 

by the people in separate districts, hoping thus to 
secure a sufficient number to elect their Presidential 
candidate. The Federalists, thinking their supremacy 
in the assembly assured, refused to support the 
plan. Now, however, when it became known that 
their adversaries had gained a majority in the Legis- 
lature on which would devolve the duty of choosing 
the electors, Hamilton addressed a letter to Gov, 
Jay, suggesting that the present body, whose term 
would not expire before July, should be again con- 
vened, in order to pass a measure, which, when before 
proposed by the Republicans, had been denounced as 
unconstitutional. Jay had too much regard for prin- 
ciple to entertain the idea. After his death, the 
letter was found among his papers, endorsed, " Pro- 
posing a measure for party purposes which I think 
it would not become me to adopt." 

It is related that a noted French duellist, when 
required to forgive his enemies before receiving 
absolution, exclaimed, " My enemies } I have none. 
I have killed them all ! " Mr. Jefferson might have 
responded in the same manner, the morrow after 
the Presidential election. To the one party, the 
result seemed like the breaking up of an ice gorge — 
the harbinger of spring. To the other it appeared 
as an avalanche of French principles, destructive 
alike of religion and established government. Both 
were at fault. President Jefferson was quite as 



ELECTION OF JEFFERSON. 3 1 1 

unable to destroy the work of his predecessors 
as he was to depart from their policy of neutrality. 
The Sedition and Alien Laws soon expired by limi- 
tation ; but the great measures of the former admin- 
istrations were too wise, and had struck their roots 
too deep into the national sentiment, to be suddenly 
overturned. No such sweeping transformation had 
occurred before in American political life : the next 
in succession was the overthrow of the Democrats in 
1840. They then rallied after their overwhelming 
defeat, and at the end of four years regained all that 
they had lost. In the present instance, the Federal 
as a national organization seemed to be eliminated ; 
and, though a remnant lingered in some of the States, 
its power was gone, and for the future it was useful 
only as a scarecrow to prevent Republicans straying 
from the fold. Some of a new generation, restive 
under general proscription and unrelenting persecu- 
tion, adopted the theory of the Kentucky resolutions, 
and lent themselves to measures which their fathers 
would have condemned as treason to a union they 
had successfully established. 

Jefferson now reaped the harvest of his ten 
years' management, and was thenceforth the su- 
preme deity in the Democratic pantheon. He had 
breathed the breath of life into the elements which 
he found, had organized and marshalled his followers 
to victory, and was looked upon as a skilful party 



312 THE LIFE AND TIMES OF JOHN JAY. 

leader. It remained to be seen whether equal good 
fortune would attend him as the chief executive of 
the nation. Such had not been the case while he 
presided over the destinies of his native Virginia. 
It was a worthy aspiration on his part to be the 
chosen magistrate of a free people ; but his debauch- 
ery of the press, disloyalty to the first President, 
and ruthless slaughtering of the reputation of those 
standing in the way of his advancement, must 
always detract from that consideration which his 
intellectual ability and patriotic services would other- 
wise demand. The private correspondence of the 
distinguished men of the Revolutionary era has 
nearly all seen the light, and the fame of the writers 
been enhanced thereby with the single exception 
of the author of the Declaration. His letters and 
journals, written in many cases for a special purpose, 
indicate great mental capacity, often combined with 
littleness of character ; and few statesmen have 
given expression to more diverse opinions upon all 
public questions. From the time of assuming office, 
to judge by these writings, he failed to perceive 
any merit in those not engaged in the service of 
the party of which he was the moving spirit. Con- 
temporary American statesmen are disparaged, and 
their motives impugned. After his retirement, he 
occupied himself in raking from the ashes of the 
past, as he said, " to throw light on history,." petty 



ELECTION OF JEFFERSON. 3 1 3 

scandals about his rivals, which should have re- 
mained buried with the embittered conflicts which 
gave them birth. Jay, Marshall, Hamilton, and 
others, are the subject of his derogatory remarks ; 
and, though he dared not assail Washington, he 
sneers at him as the supple tool of designing men. 

The apologists for Jefferson, who claim that he 
believed the truth of what he asserted, do so at the 
expense of his intellect. He was too astute to give 
a moment's credence to such silly stories himself. 
It suited him to have them spread, and he did not 
hesitate to lend them currency. Accredited by the 
impress of one occupying his position, and fulmi- 
nated at a time of high party excitement, they 
were received without the doubt their improbable 
nature would otherwise have occasioned. The state- 
ment that monarchical sentiments generally prevailed 
upon his arrival in New York, and that the leading 
Federalists were conspiring to found a kingdom in 
America, is the veriest figment of the imagination. 
He thus assailed those who had preserved the States 
from English domination, with whom a love of the 
whole Union was an earnest passion, whose patriot- 
ism was bounded by no State lines ; men who had 
closely studied, and were familiar with the principles 
regulating Constitutional government, and knew 
that all authority under it must be evolved from the 
condition of society, and the habits and modes of 



314 THE LIFE AND TIMES OF JOHN JAY. 

thought of the people. The belief that these men, 
who had just reared a symmetrical fabric, would for 
no apparent object now conspire to destroy their 
own beautiful creation, and establish one opposed to 
their former teachings, and foreign to the genius of 
the inhabitants, is too absurd to be entertained. 
Jefferson's success in arousing such apprehension 
indicates how deeply a love of Republican institu- 
tions was embedded in the hearts of the American 
people, and how jealous they were of a recurrence 
to those they had recently discarded. No other 
public man discovered that monarchy was favored 
by any individual of weight. We might properly 
ask, in whose interest was this attempt to restore 
the past to be made? There was but one person 
in America, who, by any possibility, could challenge 
sovereign rule, and he had indignantly spurned such 
a suggestion when made at Newburg. He had volun- 
tarily returned to his country the sword wielded in 
her defence, accepted the Government only in com- 
pliance with the urgent and expressed desire of the 
people, and retained it contrary to his own inclina- 
tion, at the earnest solicitation of Jefferson and 
others. Had such a change been contemplated by 
the Federal party, would they not have embraced 
the opportunity offered while the country was in 
a disorganized condition, to accomplish their treason- 
able aims, instead of pressing the establishment of 



ELECTION OF JEFFERSON. 3 1 5 

a stable government, buttressing it afterward by- 
measures calculated to render the structure more 
enduring? It would have been easy for Hamilton 
to make confusion worse confounded, by retiring, 
like other New- York delegates, from the Philadel- 
phia convention. He knew the general features of 
the instrument to be submitted to the people. It 
did not meet his full approval. He was the only 
representative from the State then present, and his 
withdrawal would have been fatal to its success. If 
he had been determined upon destroying the work 
of that body, would he, in conjunction with Jay and 
Livingston, have made such strenuous exertions to 
have the Constitution, which had been framed^ rati- 
fied by the convention at Poughkeepsie .-* It is in 
such a disturbed condition of affairs as would have 
followed the opposition of any of these statesmen, 
that designing men effect the purpose charged by 
Jefferson. 

No doubt, there still lingered in the minds of some 
of the patriots, an attachment to the laws, manners, 
and literature of a people from whose loins they had 
sprung. The government of their fathers had for 
almost a century been held up before them as a 
perfect model. Its constitution was the steady out- 
growth of generations, and had been extolled by 
Montesquieu, and interpreted by Blackstone. They 
may have thought, that, in that of America, a greater 



3l6 THE LIFE AND TIMES OF JOHN JAY. 

degree of energy should have been infused into the 
Executive branch ; but they all gave the newly es- 
tablished Commonwealth a cordial support. Their 
letters and papers written at the time, show the 
loftiest patriotism and supremest loyalty. During 
the embittered contest then raging in Europe, they 
felt as Americans, and resisted the dogmatic claims 
of royal England on the one side, and the insidious 
wiles of democratic France on the other. Jay, as 
we have seen, was declared by the British envoy 
an enemy to the mother country ; while later the 
French minister believed him opposed to Gallic 
pretensions. 

Thp insinuation by Jefferson, that Hamilton 
corrupted the national Legislature, is entirely unsus- 
tained by evidence. The man who uses official posi- 
tion to corrupt others, is himself corrupt. Hamilton 
withdrew from the secretaryship a poor man, because 
of the small income derived from it. He was too 
honest to enrich himself at the expense of the coun- 
try, and too proud to speculate in its securities. 
Talleyrand, then in America, expressed the situation 
when he said of him, " I have seen a man who had 
made the fortune of a nation, laboring all night to 
support his family." Jefferson's own secretary, Gal- 
latin, with a magnanimity and candor that redound 
to his credit, informs us that he was instigated by 
his chief to search the archives of the Treasury, — 



ELECTION OF JEFFERSON. 3 1 7 

both of them hoping to convict Hamilton, — but he 
discovered "the most perfect system." "Hamilton," 
he said, "made no blunders, committed no fraud." 
His financial proceedings were of the same character 
as those he had advocated before entering upon 
office, and he believed their enactment would pro- 
mote the welfare of the whole country. The funding 
of the national debt and the assumption of those of 
the States were wise and just measures of them- 
selves. The bank he had recommended from his 
tent during the Revolution. They were intended to 
save American honor, and revive American credit. 
That they should operate to enlist all sections of the 
Union in maintenance of the General Government, 
was desirable, and, perhaps, not unexpected ; but we 
have no reason to suppose that improper means were 
employed by him to secure their passage. Fisher 
Ames, then a representative from Massachusetts, 
testifies of the Congress that enacted these, " I have 
never seen an assembly where so little art was used : 
there was no intrigue, no caucussing, little of clan- 
ning together." This is certainly not the picture of 
a corrupt body. The only bargaining in the case 
was made at Jefferson's own table, and under his 
auspices, when two Virginia members agreed to vote 
for the assumption bill, provided the national capi- 
tal should be placed on the borders of their own 
State. Adams's overweening vanity, and jealousy of 



3l8 THE LIFE AND TIMES OF JOHN JAY. 

Hamilton, the opposition of the latter to his re-elec- 
tion, and a consequent division within the party, 
combined with the inconsiderate laws passed during 
the French craze, and the President's capricious man- 
agement of foreign affairs, so weakened the hold of 
the Federalists upon public confidence, that the 
charges emanating from Jefferson, and industriously 
circulated, had, in the excited condition of the pub- 
lic mind, a decided influence in hastening their fall. 
It is doubtful, however, whether, under more favor- 
able circumstances, they could have retained author- 
ity for many years longer. The important work of 
the Federalists was accomplished. They had become 
conservative rather than progressive, and strove to 
preserve, amid revolutions, the institutions they had 
founded. They were not in accord with the spirit of 
the age, that would break away from the past, and 
explore the boundless field of political science. They 
clung to ancient traditions, were incapable of ad- 
vancing ; and the organization, therefore, died with 
the century of its birth. A younger generation, 
with new ideas, thenceforth assumed the lead. The 
seat of government was removed to the banks of the 
Potomac, and "Tom Jefferson," at the inauguration, 
riding to the capital alone, and hitching his horse to 
a tree, was typical of the new era which had opened 
upon the country. 

We should search the pages of history in vain to 



ELECTION OF JEFFERSON. 319 

find another party as rich in men of eminent ability, 
lofty rectitude, and unsullied patriotism, as the one 
just displaced. While some of its leaders, like 
Pickering, continued embittered to the end, others, 
when they laid aside public affairs, laid aside personal 
asperities, and passed life's Indian summer, cheered 
by the reflection of obligations to the nation con- 
scientiously fulfilled. " All the ends they aimed at 
were their country's." They realized the great 
destiny the future had in store for her, and reared a 
structure strong enough for an increasing population 
and extending territory. They were called upon to 
lay broad the groundwork of American nationality ; 
to establish a government novel in character; organ- 
ize a judiciary ; revive commerce ; create a system of 
revenue ; provide for the national debt, and secure 
American neutrality amid wars, which, like the air 
of heaven, swept over every land and sea. Such 
were the duties imposed on them, and time has mani- 
fested the wisdom and fidelity with which they were 
discharged. 

The result of their labors was a Constitution sub- 
jected to a strain which none other could have en- 
dured, yet striking its roots deeper and deeper into 
the national life, — the ideal and pattern for all peo- 
ples ; a judiciary paramount in its decisions, with an 
unblemished record ; a system of revenue in force 
down to the present generation ; the debt extin- 



320 THE LIFE AND TIMES OF JOHN JAY. 

guished, while the twin-stars of American nationality 
and American neutrality, which they called into be- 
ing, have guided the country from financial ruin to 
its present high degree of prosperity. As has been 
justly said, " History has yet to record the names of 
statesmen whose principles were more sound, whose 
policy was more just and sagacious, who better un- 
derstood the hazards of liberty and the metes and 
bounds of freedom, whose political conduct was 
more high-minded, magnanimous, and pure. How- 
ever they may have been assailed, it can never be 
forgotten that of these were Washington, Adams, 
Hamilton, Jay, Wolcott, and others like them, — 
names illustrious and venerated all over the world ; 
that to these, in a large part, belongs the honor of 
framing the Constitution, and securing its accept- 
ance ; and that their legitimate successors have been 
its ablest expounders, and most eloquent defenders." 
By them was mainly produced what Gladstone has 
pronounced "the most wonderful work ever struck 
off at a given time by the brain and purpose of 
man." In no other system of government has the 
average of human intelligence been greater, nor the 
education, material prosperity, and happiness of 
the people more largely promoted. 

After twelve years of successful administration, 
the Federalists were overthrown, and, with scorn and 
contumely, driven into outer darkness. Has time 



ELECTION OF JEFFERSON. 32 1 

placed its approving seal upon their political princi- 
ples ? The difference between the Republican, or 
Democratic, party and its adversary was based chiefly 
on the relation borne by the States to the General 
Government, and the extent of the powers which had 
been conferred upon it. Other divisions between 
them had reference to questions of expediency. It 
was admitted by all that the late Confederation pos- 
sessed no absolute sovereignty, but the Federalists 
maintained that such had now been granted to the 
central authority; that by section 10, article i, of 
the Constitution, the States were prohibited from the 
exercise of certain rights, and what remained, being 
qualified and conditional, was no sovereignty at all. 
They believed that the autonomy of the separate 
States was preserved and protected by Federal 
courts, empowered to pass judgment upon all laws 
enacted by the two Houses with the approval of the 
President. Should this not be a sufficient barrier 
against encroachments, they had the means, through 
their representatives and senators, of procuring the 
repeal of unconstitutional statutes. Hence they rea- 
soned, that with an organic law, ratified by the 
inhabitants of each member of the Confederacy, and 
under which the enactments were controlled by public 
opinion, and subsequently reviewed by the Supreme 
Court, no danger of trespass was to be apprehended, 
and nullification was a claim to judicial power by the 



322 THE LIFE AND TIMES OF JOHN JAY. 

States, which had no warrant in the Constitution. 
Jefferson, on the other hand, contended for the in- 
dependence of the several States ; and in his cele- 
brated Kentucky resolutions, as originally framed, 
advanced theories which logically led to nullification 
and the disruption of the American Union. Indeed, 
Calhoun proclaimed them "the Nullifiers' Bill of 
Rights.' After sixty years of skirmishing, these 
opposite constructions of the Constitution were 
brought, practically, face to face on the line of battle, 
when an outburst of national sentiment crushed the 
upholders of the resolutions, and declared it to be 
the immutable American polity, that the govern- 
ment of the nation is endowed with the faculty of 
self-preservation, and that the supremacy of the 
Union extends over the whole country. The seal of 
nationality was affixed at Appomattox. 

When the people were first brought into direct 
connection with the National Government, its opera- 
tions were watched with a jealous eye by its con- 
stituent members. State pride predominated, and 
the first President sometimes found trouble in 
inducing suitable persons to leave the service of 
their States- to assume office. It was even a 
question of etiquette whether President Washington 
or Gov. Hancock should make the first call on 
the other. The tendency is always to gravitate 
to the superior body; and to-day, from the rising 



ELECTION OF JEFFERSON. 323 

of the sun to the going down thereof, every eye 
is directed to the Capitol of the nation, as the 
face of the Moslem is turned to the tomb of the 
prophet whence all blessings proceed. The expan- 
sion of territory, vast increase of material wealth, 
and new conditions of society, have brought with 
them new duties, whose fulfilment is in many cases 
beyond the ability of the States ; and, without arous- 
ing their jealousy, the General Government has as- 
sumed some of them : and the inclination is to 
impose still others, and to confer enlarged authority 
upon it. It is now exercising higher powers than 
the most extreme Federalist ever claimed for it. 
Yet there is no possibility of centralization so long 
as the principle of local self-government is preserved. 
The more numerous the States, and the greater the 
diversity of interests among them, the less danger 
to this distinctive feature of American institutions. 
The danger rather lies in corrupt politicians under 
the forms of law intrenching themselves in office, 
and wielding its power for their own aggrandizement. 
* Crises often arise in the conduct of national affairs 
when cherished opinions must be sacrificed;' and 
Madison, Jackson, and even Jefferson himself, dur- 
ing their terms of office, sanctioned measures, which, 
at another time, would have been stigmatized as 
essentially Federal in character. They proved ad- 
vantageous to the country, and, instead of being 



324 THE LIFE AND TIMES OF JOHN JAY. 

censured, these statesmen are entitled to commenda- 
tion for rising superior to party consistency ; and 
their political successors should learn charity from 
it, and cease to visit with opprobrium the men who 
maintained the principles of the earlier administra- 
tions. The experience thus acquired, should, be- 
sides, teach all that the real constitution of a nation 
lies deeper than its visible ordinances, and that arti- 
ficial compacts and party principles will always be 
interpreted by the tendencies of society ; for salus 
popnli siiprema est lex is as true in America to-day 
as when first enunciated. 



AT BEDFORD. 325 



XXIII. 

AT BEDFORD. 

HAVING determined to retire, Jay declined an- 
other nomination for governor, saying that the 
period had now arrived, at which for many years he 
had intended giving up pubKc affairs. The President, 
with the purpose of "marking the spot where the 
greatest mass of worth remained collected in one 
individual," spontaneously nominated him, and the 
Senate again confirmed his appointment as chief 
justice of the Supreme Court ; but even this tribute 
to his virtue failed to shake his determination, and 
the position was for a generation filled by that pre- 
eminent jurist and able expounder of the Constitu- 
tion, John Marshall. 

If Jefferson joyfully entered upon the important 
duties to which he had been at last called by his fellow- 
citizens, it was with no less satisfaction that Jay, 
during the following summer, sought the repose of 
private life. Few statesmen ever had less reason 
to be disgusted with political ofiice ; yet he beheld 
with pleasure the approach of a time, when, without 



326 THE LIFE AND TIMES OF JOHN JAY. 

neglecting his country, he could consult his own 
inclination, and withdraw from public service. He 
was in his fifty-seventh year, with vigor unimpaired, 
and in the meridian of his fame and honor. With 
most men at this age, the fire of ambition is still 
burning, and what they have already achieved is 
but the starting-point for further advances toward an 
ever receding goal. Jay's mind was eminently con- 
templative, and his domestic affections strong, thus 
fitting him for the quiet of the country. He had 
inherited from his mother the large estate of Bed- 
ford, situated about fifty miles from the city of New 
York ; and he now took up his residence at that 
secluded place. Since the evacuation of the British 
forces, it had been occupied only by tenants, and 
was, in consequence, in a neglected and dilapidated 
condition. While governor, he had begun the erec- 
tion of a commodious dwelling upon a portion of 
the tract ; and the superintendence of this, and the 
renovation of the land, promised to furnish him with 
ample employment for many years to come. 

Before leaving Albany, the health of Mrs. Jay had 
begun to fail ; and, as the noise and bustle of the 
mechanics about the building would render the 
house unsuitable for an invalid, she was for some 
weeks unable to join her husband in their new home. 
She had been intimately associated with all his plans 
of retirement, and every arrangement made had 



AT BEDFORD. 327 



reference to her continued presence with him. 
Though she had necessarily spent many years in 
the fashionable world, she looked forward with satis- 
faction to the privacy of the country. Her anticipa- 
tions were realized for only a few months, during 
which time she was able to write to a friend, " I can 
truly say that I have never enjoyed so much comfort 
as I do here." Within a year after her removal, she 
was seized with a severe illness, which in a few days 
terminated fatally. Jay, calm and collected, watched 
by her bedside until the last, when, with a spirit 
that partook of his Huguenot progenitor, he led his 
children into an adjoining room, and, with a firm 
voice, read to them the fifteenth chapter of'Corinth- 
ians. The married life of Mrs. Jay and her husband 
had for the entire period been one of unclouded 
happiness. 

" Two such silver currents when they join, 
Do glorify the banks that bound them in." 

She had been his chosen companion, sharing his 
hopes and aspirations, his cares and anxieties — a 
helpmeet in all things. Their griefs, too, had been 
common ; for they had mingled their tears over the 
graves of their children, and sorrowed together at 
the loss of their parents and friends. She had 
graced the drawing-room of the first President at 
Philadelphia, and presided with dignity over the 



328 THE LIFE AND TIMES OF JOHN JAY. 

governor's household at Albany. She was the leader 
of society in America when this implied more than 
mere social elevation. Extreme simplicity of apparel 
and manners had been inaugurated by the French 
Revolution, and it was for the Federalists — male 
and female — to preserve the stately dignity and 
grace of the ancien regime from being swept away. 
Her beauty, amiability, culture, and vivacity made 
her the charm of the circle in which she moved ; 
while her steadfast adherence to the fortunes of the 
country, won for her the respect and kindly feeling 
of those who disapproved of the political principles 
of her husband. 

It might be supposed that the loss of his wife, 
and the sudden and total change to the seclusion 
of Bedford, would have produced in Jay a feeling of 
loneliness, weariness, and enmii ; but his remaining 
years were tranquilly and happily passed in the 
management of his property, in the company of 
his books and the distinguished persons who from 
time to time sought him out, and in the performance 
of those minor duties required of all. When 
asked how it was possible to occupy his mind, he 
replied with a smile, " I have a long life to look 
back upon, and an eternity to look forward to." 
Modern literature possessed little attraction for him. 
To use his own language, he preferred to converse 
with the mighty dead of earlier times. He daily 



AT BEDFORD. 329 



and carefully perused the Scriptures, and, during 
his last illness, referred his children to them as the 
foundation upon which his faith rested. He was 
naturally desirous for their general diffusion, and 
took a deep interest in the progress of the American 
Bible Society. Upon the decease of Boudinot, the 
venerable president of that organization, he was 
elected to fill the vacancy, but hesitated to occupy 
the position until assured that little further service 
would be demanded of him than the preparation of 
an annual address. As the head of the institution 
he acceptably discharged its functions for seven years. 
Though he no longer participated in national con- 
cerns, he anxiously watched the storms gathering 
over them, and displayed also a marked interest in 
affairs of the neighborhood, mingling with his fellow- 
citizens, and, when able, never failing to cast his 
vote at elections, even when only for town officers. 

Regarding expensive decorations as inconsistent 
with the simplicity which should characterize Amer- 
ican rural life, he constructed his buildings in a plain, 
substantial manner, of the best material to be pro- 
cured, and with a direct view to the uses for which 
they were intended. A friend who had spent some 
days with him, observing this trait, remarked that 
Gov. Jay in all his conduct seemed to have reference 
to perpetuity in this world, and eternity in the next. 
He would not give a name to his extended estate, 



330 THE LIFE AND TIMES OF JOHN JAY. 

nor allow it to be termed a seat or a place, but 
simply a farm. All his stock was of the best, well 
provided for, and never overworked ; and his opera- 
tions were profitable to his poor neighbors rather 
than to himself. In age and solitude, when social 
discipline is removed, men of worldly minds are apt 
to become morose, and selfish ones peevish. Jay, 
however, grew more gentle and kindlier with age, 
more thoughtful of the comfort of others, and more 
indifferent to his own, until at length not a child 
could approach him, nor a servant do his bidding, 
without receiving from him some word or look in- 
dicative of kind feeling. Being now master of his 
time, the habits of the "good old governor" were 
very regular. He was an early riser, cutting a hole 
in the solid shutter, that the first rays of the sun 
might fall upon his pillow, and rouse him from sleep. 
When the weather permitted, he spent most of the 
morning on horseback, riding about the grounds, 
and directing the laborers. After dinner it was his 
custom to indulge moderately in smoking, and his 
evenings were devoted to reading and intercourse 
with his family and others. Blessed with an inde- 
pendence, his expenditures were yet regulated by 
a judicious economy ; and he was thus enabled to 
respond freely to every call for benevolent purposes, 
or objects calculated to promote the general welfare. 
By education and conviction, he was an ear- 



AT BEDFORD. 331 



nest Episcopalian. At the time of his removal to 
Bedford, there was no organized body of that de- 
nomination in the neighborhood ; and he therefore 
worshipped with the Presbyterians, until by his ex- 
ertions, and mainly by his aid, a parish church was 
built. He regularly contributed to its support, and 
at his death bequeathed a liberal sum to its pastor ; 
but his reluctance to hold office led him to decline 
taking any part in its government. In the differ- 
ences between the high and low church, he sided 
with the latter, and would have carried into eccle- 
siastical affairs the same ideas that inspired his 
political action. When the edifice that he had 
helped to erect was about to be consecrated, some 
innovations in the usual ceremonies were proposed 
by the authorities of Trinity, New York, against 
which, as the organ of the vestry, he thus protested : 
"We believe that Episcopacy was of apostolic insti- 
tution; but we do not believe in the various high- 
church doctrines and prerogative, which art and 
ambition, triumphing over credulity and weakness, 
have annexed to it. Ever encroaching on the rights 
of government and of the people, they have con- 
stantly found it convenient to incorporate as far as 
possible the claims of the clergy with the principles 
of religion ; and the advocates have not ceased to 
preach for Christian doctrine, the commandments 
and desires of men. Hig-h-church doctrines are not 



332 THE LIFE AND TIMES OF JOIIX JAY. 

accommodated to the state of society, nor to the toler- 
ant principles, nor the ardent love of liberty, which 
prevail in our country." 

A weekly mail supplied him with information of 
events transpiring in the outside world ; and he 
watched with interest the mighty struggle going 
on in Europe, and particularly the controversy that 
had arisen between America and England, which 
culminated in the war of 1812. Although this did 
not disturb his retirement, it led him once again to 
mingle in the counsels of his political friends in the 
State ; and he wrote to one of these, " In my opinion, 
the war is not necessary nor expedient nor season- 
able ; yet, having been Constitutionally declared, the 
people are evidently bound to support it in the 
manner in which Constitutional laws shall prescribe." 
He was far from regarding his own country as en- 
tirely at fault, or holding Great Britain blameless. 
War is at all times a harsh remedy for imputed 
wrong, and the progress of civilization is indicated 
by the amelioration of its hardships. Jay had real- 
ized in the American Revolution the injustice of 
confiscating private debts during national hostilities, 
and the wisdom of the tenth article in his celebrated 
treaty was now strikingly displayed. This stipulated, 
that, under such circumstances, they should not be 
sequestrated. It will be remembered, that, in the 
prolonged debate in Congress, this article was 



AT BEDFORD. 333 



denounced by Madison as the abandonment of a 
powerful means of offensive warfare against Great 
Britain. She, at that time, was the creditor nation ; 
but now the situation was reversed, and her mer- 
chants had become indebted to those of America 
for many millions, which, under Madison's own 
administration, were preserved to his country, 
showing that justice and true policy are identical. 

We have already alluded to Jay's sentiments on 
the subject of domestic slavery. Believing that 
holding human beings in bondage was inconsistent 
with the teachings of Christianity, and adverse to 
the principles upon which independence rested, he 
had labored as a private citizen to mitigate the 
consequent evils in his native State, and, as gov- 
ernor, had finally succeeded in having emancipation 
ingrafted upon its civil policy. When, therefore, 
the Missouri question was agitating the country, 
and threatening a disruption of the Union, his opin- 
ion as to the power of Congress to prohibit slavery 
within the borders of a proposed State was sought 
by those who advocated such a restriction, the reply 
was of the character doubtless anticipated from a 
person entertaining his views of the Federal Con- 
stitution. He said that slavery ought not to be intro- 
duced or permitted in any of the new States, and 
that it should be gradually circumscribed and abol- 
ished in all. He believed, further, that the importa- 



334 THE LIFE AND TIMES OF JOHN J A V. 

tion clause in the Constitution conferred upon Con- 
gress the right to prohibit the migration of slaves 
into any of the Territories or newly formed States. 
It is needless to say that these opinions were too 
radical to meet the approval of any American states- 
man of that day. Had they generally prevailed, and 
been embodied in legislation, slavery would have been 
confined to its original domain, and have died of 
asphyxia, without the vast expenditure of blood and 
treasure ultimately found necessary for its destruction. 
Notwithstanding the infirmities incident to his 
years, Jay enjoyed an old age of remarkable tran- 
quillity. Like a stream approaching the ocean, life 
seemed to flow steadily onward in quietness and 
beauty to the end. A generation had come forward 
"which knew not Joseph ;" and with the one passing 
away were buried many of the calumnies with which 
he had been assailed. His long retirement had 
exempted him from engaging in the conflicts and 
animosities of modern parties, and near posterity 
learned to revere him for his distinguished services, 
and the spotless purity of his character. For many 
years each recurrence of Independence Day had 
served to mark advances in the material prosperity 
of the American people. Since the formation of the 
government, the country had more than doubled 
both its area and population. The clouds which had 
obscured the horizon a few years before were now dis- 



AT BEDFORD. 335 



persed, and "the era of good feeling" was restored. 
It was determined to celebrate the fiftieth anniver- 
sary of the Declaration, near at hand, with more 
than ordinary pomp and festivity. Two members of 
the committee that had reported it — its author and 
the one that enforced its adoption upon Congress — 
still survived ; and it was deemed eminently appro- 
priate that he, too, who had so greatly aided in ren- 
dering the instrument effective, should participate 
in ceremonies suitable to the occasion. When reply- 
ing to the invitation from the municipal authorities 
of New York, Jay said, " I cannot forbear to embrace 
the opportunity thus afforded, to express my earnest 
hope that the peace, happiness, and prosperity en- 
joyed by our beloved country may induce those who 
direct her national counsels, to recommend a general 
and public return of praise and thanksgiving to Him 
from whose goodness these blessings descend." This 
letter, directing his countrymen to that Power whose 
arm he felt supporting him while descending into 
the dark valley, was among his last productions. 

The end, now rapidly approaching, was awaited 
without fear. On the evening of May 14, 1829, he 
retired apparently in his usual health, but during the 
night was stricken with palsy. He lingered until 
noon of the 17th, when he expired, in the eighty- 
fourth year of his age. His death was in strict keep- 
ing with his life. He had outlived nearly all of his 



336 THE LIFE AND TIMES OF JOHN JAY. 

early political associates. Of the members of the 
old Congress, Adams and Jefferson, with its secre- 
tary, Thomson, had recently died, leaving the vener- 
able Carroll, as Mr. Webster said, " like an aged oak 
upon the plain." He, too, soon fell, the last of the 
giants of those days. By his own request, Jay was 
buried without ostentation, and the money thereby 
saved was devoted to the relief of a neighboring 
widow and her family. 

The announcement of his death was received with 
general regret, and called forth tributes to his mem- 
ory from public bodies and private citizens in all 
parts of the Union. The bar connected with the 
highest tribunal of his own State — men who knew 
him personally — thus testified their appreciation of 
his character : " While his private virtues and pub- 
lic worth have justly endeared him to the nation, his 
patriotism, great talents as a statesman, and his great 
acquirements as a jurist, and his eminent purity as 
a Christian, and his probity as a man, all unite to 
present him to the public as an example whose 
radiance points to the attainment of excellence." 



CONCLUSION. 337 



XXIV. 

CONCLUSION. 

A MAN'S character is to be sought in the record 
of his life, yet this brief sketch of Jay's career 
necessarily leaves unsaid, much that is essential in 
forming a proper estimate of him. 

The mind of the first chief justice was vigorous, 
well balanced, and governed by enlightened moral 
faculties : hence his judgment was exact, logical, and 
discriminating. His deficiencies were, perhaps, a 
want of imagination, — the efficient handmaid to rea- 
son, — and a lack of that humor which gives zest to 
the driest logic. In the correspondence and other pa- 
pers emanating from his pen, we seldom find a figure 
of speech employed to illustrate his meaning, and 
discover no trace of wit to enliven his familiar dis- 
course. His great characteristic was superior wis- 
dom in seeing clearly the right as distinguished from 
the expedient, and following it firmly and patiently. 
He was not a full man, in the sense of Lord Bacon, his 
knowledge having been mainly acquired from inter- 
course with others : neither was it deepened by study, 



338 THE LIFE AND TIMES OF JOHN JAY. 

nor broadened by culture. He was thoroughly im- 
bued with the spirit of truth and loyalty to duty, 
as was manifested in all his public positions and 
private relations. Without guile, he could yet hide 
what should be concealed ; but what was revealed 
carried with it, to truthful men, the conviction of 
truth. This straightforwardness baffled the jugglery 
of the Spanish and French diplomats, won Oswald 
and Shelburne to his views, and led sturdy John 
Adams to exclaim, " When my confidence in Mr. Jay 
shall cease, I must give up the cause of confidence, 
and renounce it in all men." 

He was exact in his expenditures, and liberal in 
his charities. His wants in all cases conformed to 
his means, and his soundness of judgment was 
illustrated by the investments that he made. At a 
private meeting, Hamilton and Robert Morris recom- 
mended buying new lands : Jay, on the other hand, 
advocated suburban property. By their respective 
purchases, the first lost money, the second was 
ruined, while the third realized a profit. 

Jay was by nature of a quick temper ; but like 
Washington, whom he resembled in many traits, he 
early brought it under control. The principles regu- 
lating his life were formed ere manhood was reached, 
and lived out with unswerving fidelity : hence his 
conduct was consistent throughout. His manners 
were grave and not engaging to strangers, inspiring 



CONCLUSION. 339 



respect rather than affection. He was a man of 
great sincerity, and claimed never to have lost a 
friend through an act of his ; but his confidence once 
forfeited was never regained. Its loss left no enmity 
behind, yet the impression was ineffaceable. 

He was without sufficient ambition to make the 
necessary sacrifice for the possession of power : nei- 
ther was he bold and enterprising enough to become 
a political leader. His desires seemed to be, to meet 
the approval of his own conscience, and to win the 
esteem of the wise and good ; and there is nothing to 
indicate that he ever sought popularity or public 
station : hence his refusal to even entertain Ham- 
ilton's scheme to defeat Jefferson. 

The life of John Jay was that of an humble Chris- 
tian, pure and undefiled ; and we shall search in vain 
among the public men of the age, for one possessing 
greater virtue or more unselfish patriotism. As was 
said of another in the olden time, "He did that 
which was right in the sight of the Lord, and turned 
not aside to the right or the left hand." 



APPENDIX A. 



ADDRESS TO THE PEOPLE OF GREAT BRITAIN. 

FRIENDS AND Fellow-Subjects, — When a nation led 
to greatness by the hand of Uberty, and possessed of all 
the glory that heroism, munificence, and humanity can be- 
stow, descends to the ungrateful task of forging chains for 
her friends and children, and, instead of giving support to 
freedom, turns advocate for slavery and oppression, there 
is reason to suspect she has either ceased to be virtuous, 
or been extremely negligent in the appointment of her 
rulers. 

In almost every age, in repeated conflicts, in long and 
bloody wars, as well civil as foreign, against many and pow- 
erful nations, against the open assaults of enemies, and 
the more dangerous treachery of friends, have the inhabit- 
ants of your island, your great and glorious ancestors, main- 
tained their independence, and transmitted the rights of 
men and the blessings of liberty to you, their posterity. 

Be not surprised, therefore, that we, who are descended 
from the same common ancestors ; that we, whose fore- 
fathers participated in all the rights, the liberties, and the 
Constitution you so justly boast of, and who have carefully 
conveyed the same fair inheritance to us, guaranteed by the 

341 



342 APPENDIX A. 



plighted faith of government, and the most solemn com- 
pacts with British sovereigns, — should refuse to surrender 
them to men who found their claims on no principles of 
reason, and who prosecute them with a design, that, by 
having our lives and property in their power, they may with 
the greater facility enslave you. 

The cause of America is now the object of universal 
attention : it has at length become very serious. This un- 
happy country has not only been oppressed, but abused 
and misrepresented ; and the duty we owe to ourselves and 
posterity, to your interest and the general welfare of the 
British Empire, leads us to address you on this very im- 
portant subject. 

Know, then, that we consider ourselves, and do insist 
that we are and ought to be, as free as our fellow-subjects 
in Britain, and that no power on earth has a right to take 
our property from us without our consent. 

That we claim all the benefits secured to the subject by 
the English Constitution, and particularly that inestimable 
one of trial by jury. 

That we hold it essential to English liberty, that no man 
be condemned unheard, or punished for supposed offences, 
without having an opportunity of making his defence. 

That we think the Legislature of Great Britain is not 
authorized to establish a religion fraught with sanguinary 
and impious tenents, or to erect an arbitrary form of gov- 
ernment in any quarter of the globe. These rights, we, as 
well as you, deem sacred. And yet, sacred as they are, 
they have, with many others, been repeatedly and flagrantly 
violated. 



APPENDIX A. 343 



Are not the proprietors of the soil of Great Britain lords 
of their own property ? Can it be taken from them without 
their consent ? Will they yield it to the arbitrary disposal 
of any man or any number of men whatever ? You know 
they will not. 

Why, then, are the proprietors of the soil of America less 
lords of their property than you are of yours? or why 
should they submit it to the disposal of your Parliament, 
or any other parliament or council in the world not of their 
election? Can the intervention of the sea that divides us 
cause disparity in rights ? or can any reason be given why 
English subjects, who live three thousand miles from the 
royal palace, should enjoy less liberty than those who are 
three hundred miles distant from it? 

Reason looks with indignation on such distinctions, and 
freemen can never perceive their propriety. And yet, 
however chimerical and unjust such discriminations are, the 
Parliament asserts that they have a right to bind us in all 
cases without exception, whether we consent or not ; that 
they may take and use our property, when and in what 
manner they please ; that we are pensioners on their bounty 
for all that we possess ; and can hold it no longer than they 
vouchsafe to permit. Such declarations we consider as 
heresies in Enghsh politics, and which can no more operate 
to deprive us of our property, than the interdicts of the 
pope can divest kings of sceptres which the laws of the 
land and the voice of the people have placed in their 
hands. 

At the conclusion of the late war, — a war rendered 
glorious by the abilities and integrity of a minister to whose 



344 APPENDIX A. 



efforts the British Empire owes its safety and its fame, — at 
the conclusion of this war, which was succeeded by an in- 
glorious peace, formed under the auspices of a minister of 
principles and of a farrtily unfriendly to the Protestant 
cause, and inimical to Uberty; we say at this period, and 
under the influence of that man, a plan for enslaving your 
fellow-subjects in America was concerted, and has ever 
since been pertinaciously carrying into execution. 

Prior to this era, you were content with drawing from 
us the wealth produced by our commerce. You restrained 
our trade in every way that could conduce to your emolu- 
ment. You exercised unbounded sovereignty over the sea. 
You named the ports and nations to which alone our 
merchandise should be carried, and with whom alone we 
should trade ; and though some of these restrictions were 
grievous, we nevertheless did not complain ; we looked up 
to you as to our parent State to which we were bound by the 
strongest ties, and were happy in being instrumental to 
your prosperity and grandeur. 

We call upon you, yourselves, to witness our loyalty and 
attachment to the common interest of the whole empire. 
Did we not in the last war add all the strength of this vast 
continent to the force which repelled our common enemy? 
Did we not leave our native shores, and meet disease and 
death, to promote the success of British arms in foreign 
climates? Did you not thank us for our zeal, and even 
reimburse us large sums of money, which, you confessed, 
we had advanced beyond our proportion, and far beyond our 
abilities? You did. 

To what causes, then, are we to attribute the sudden 



APPENDIX A. 345 



change of treatment, and that system of slavery which was 
prepared for us at the restoration of peace ? 

Before we had recovered from the distresses which ever 
attend war, an attempt was made to drain this country of 
all its money by the oppressive Stamp Act. Paints, glass, 
and other commodities which you would not permit us to 
purchase of other nations, were taxed. Nay, although no 
wine is made in any country subject to the British state, 
you prohibited our procuring it of foreigners without paying 
a tax imposed by your Parliament on all we imported. 
These, and many other impositions, were laid upon us 
most unjustly and unconstitutionally, for the express purpose 
of raising a revenue. In order to silence complaint, it was 
indeed provided, that this revenue should be expended in 
America for its protection and defence. These exactions, 
however, can receive no justification from a pretended 
necessity of protecting and defending us. They were lav- 
ishly squandered on court favorites and ministerial depend- 
ants, generally avowed enemies to America, and employing 
themselves by partial representation to traduce and embroil 
the colonies. For the necessary support of Government 
here, we ever were, and ever shall be, ready to provide. 
And whenever the exigencies of the State may require it, 
we shall, as we have heretofore done, cheerfully contribute 
our full proportion of men and money. To enforce this 
unconstitutional and unjust scheme of taxation, every fence 
that the wisdom of our British ancestors had carefully 
erected against arbitrary power, has been violently thrown 
down in America, and the inestimable right of trial by jury 

tnVpn aw3v in rq<;pc; that tniirh life and nronertv. It waS 



346 APPENDIX A. 



ordained, that whenever offences should be committed in 
the colonies against particular acts, imposing various duties 
and restrictions upon trade, the prosecutor might bring his 
action for the penalties in the courts of admiralty, by which 
means the subject lost the advantage of being tried by an 
honest, uninfluenced jury of the vicinage, and was subjected 
to the sad necessity of being judged by a single man, the 
creature of the crown, and according to the course of law 
which exempts the prosecutor from the trouble of proving 
his accusation, and obliges the defendant either to evince 
his innocence or to suffer. To give this new judicatory the 
greater importance, and as if with design to protect false 
accusers, it is further provided that the judge's certificate 
of there having been probable cause of seizure and prose- 
cution, shall protect the prosecutor from actions at common 
law for recovery of damages. 

By the course of our laws, offences committed in such 
of the British dominions in which courts are established, and 
justice duly and regularly administered, shall be there tried 
by a jury of the vicinage. Then the offenders and witnesses 
are known, and the degree of credibility to be given to their 
testimony can be ascertained. 

In all these colonies, justice is regularly and impartially 
administered ; and yet, by the construction of some, and 
the direction of other Acts of Parliament, offenders are to 
be taken by force, together with all such persons as may be 
pointed out as witnesses, and carried to England, there to 
be tried in a distant land by z.jury of strangers, and subject 
to all the disadvantages that result from want of friends, 
want of witnesses, and want of money. 



APPENDIX A. 347 



When the design of raising a revenue from the duties 
imposed on the importation of tea into America, had, in a 
great measure, been rendered abortive by our ceasing to 
import that commodity, a scheme was concerted by the 
ministry with the East-India Company, and an Act passed, 
enabhng and encouraging them to transport and vend it 
in the colonies. Aware of the danger of giving success to 
this insidious manoeuvre, and of permitting a precedent of 
taxation thus to be estabhshed among us, various methods 
were adopted to elude the stroke. The people of Boston, 
then ruled by a governor, whom, as well as his predecessor 
Sir Francis Bernard, all America considers as her enemy, 
were exceedingly embarrassed. The ships which had ar- 
rived with the tea were, by his management, prevented from 
returning. The duties would have been paid, the cargoes 
landed, and exposed to sale : a governor's influence would 
have procured and protected many purchasers. While the 
to\\Ti was suspended by deHberations on this important 
subject, the tea was destroyed. Even supposing a trespass 
was thereby committed, and the proprietors of the tea en- 
titled to damages, the courts of law were open, and judges 
appointed by the crown presided in them. The East- India 
Company, however, did not think proper to commence any 
suits j nor did they even demand satisfaction, either from 
individuals, or from the community in general. The minis- 
try, it seems, officiously made the case their own, and the 
great council of the nation descended to intermeddle with 
a dispute about private property. Divers papers, letters, 
and other unauthenticated ex parte evidence, were laid be- 
fore them ; neither the persons who destroyed the tea, nor 



548 APPEXDIX A. 



the people of Boston, were called upon to answer the com- 
plaint. The ministry, incensed by being disappointed in 
a favorite scheme, were determined to recur from the little 
arts oi finesse, to open force and unmanly violence. The 
port of Boston was blocked up by a fleet, and an army 
placed in the town. Their trade was to be suspended, and 
thousands reduced to the necessity of gaining subsistence 
from charity, till they should submit to pass under the yoke, 
and consent to become slaves by confessing the omnipo- 
tence of Parliament, and acquiescing in whatever disposition 
they might think proper to make of their lives and property. 

Let justice and humanity cease to be the boast of your 
nation. Consult your history, examine your records of 
former transactions ; nay, turn to the annals of the many 
arbitrary states and kingdoms that surround you, and show 
us a single instance of men being condemned to suffer for 
imputed crimes, unheard, unquestioned, and without even 
the specious formality of a trial — and that, too, by laws 
made expressly for the purpose, and which had no existence 
at the time of the act committed. If it be difficult to rec- 
oncile these proceedings to the genius and temper of your 
laws and Constitution, the task will become more arduous 
when we call upon our ministerial enemies to justify, not 
only condemning men untried and by hearsay, but involving 
the innocent, in one common punishment, with the guilty ; 
and for the act of thirty or forty, to bring poverty, distress, 
and calamity on thirty thousand souls, and those not your 
enemies, but your friends, brethren, and fellow-subjects. 

It would be some consolation to us if the catalogue of 
American oppressions ended here. It gives us pain to be 



APPENDIX A. 349 



reduced to the necessity of reminding you, that, under the 
confidence reposed in the faith of government pledged in 
a royal charter from a British sovereign, the forefathers of 
the present inhabitants of Massachusetts Bay left their former 
habitations, and established that great flourishing and loyal 
colony. Without incurring, or being charged with, a forfeit- 
ure of their rights, without being heard, without being tried, 
without law, and without justice, by an Act of Parliament 
their charter is destroyed, their liberties violated, their Con- 
stitution and form of government changed ; and all this, 
upon no better pretence than because in one of their towns 
a trespass was committed on some merchandise, said to 
belong to one of the companies, and because the ministry 
were of opinion that such high political regulations were 
necessary to compel due subordination and obedience to 
their mandates. 

Nor are these the only capital grievances under which we 
labor. We might tell of dissolute, weak, and wicked gov- 
ernors having been set over us; of legislatures being sus- 
pended for asserting the rights of British subjects ; of needy 
and ignorant dependants on great men, advanced to the 
seats of justice, and to other places of trust and importance ; 
of hard restrictions on commerce ; and a great variety of 
lesser evils, the recollection of which is almost lost under 
the weight and pressure of greater and more poignant 
calamities. 

Now mark the progression of the ministerial plan for 
enslaving us. Well aware that such hardy attempts to take 
our property from us, to deprive us of the valuable right of 
trial by jury, to seize our persons and carry us for trial to 



350 APPENDIX A. 



Great Britain, to blockade our ports, to destroy our charters, 
and change our form of government, would occasion, and 
had already occasioned, great discontent in the colonies, 
which might produce opposition to these measures, an Act 
was passed to protect, indemnify, and screen from punish- 
ment, such as might be guilty even of murder, in endeavor- 
ing to carry their oppressive edicts into execution ; and by 
another Act the Dominion of Canada is to be so extended, 
modelled, and governed, as that by being disunited from us, 
detached from our interests by civil as well as religious 
prejudices, that by their numbers daily swelling with Catholic 
emigrants from Europe, and by their devotion to an admin- 
istration so friendly to their religion, they might become 
formidable to us, and, on occasion, be fit instruments in the 
hands of power to reduce the ancient free Protestant col- 
onies to the same state of slavery with themselves. 

This was evidently the object of the Act; and in this 
view, being extremely dangerous to our liberty and quiet, 
we cannot forbear complaining of it as hostile to British 
America. Superadded to these considerations, we cannot 
help deploring the unhappy condition to which it has 
reduced the many English settlers, who, encouraged by the 
royal proclamation, promising the enjoyment of all their 
rights, have purchased estates in that country. They are 
now the subjects of an arbitrary government, deprived of 
trial by jury, and, when imprisoned, cannot claim the benefit 
of the Habeas Corpus Act, that great bulwark and palla- 
dium of English liberty. Nor can we suppress our astonish- 
ment that a British parliament should ever consent to 
establish in that country a religion that has deluged your 



APPENDIX A. 351 



island with blood, and dispersed impiety, bigotry, persecu- 
tion, murder, and rebellion through every part of the 
world. 

This being a state of facts, let us beseech you to consider 
to what end they lead. Admit that the ministry, by the 
powers of Britain and the aid of our Roman-Catholic 
neighbor, should be able to carry the point of taxation, and 
reduce us to a state of perfect humiliation and slavery. 
Such an enterprise would doubtless make some addition to 
your national debt, which already presses down your liber- 
ties, and fills you with pensioners and placemen. We pre- 
sume also that your commerce will somewhat be diminished. 
However, suppose you should prove victorious, in what 
condition will you then be ? What advantages or what lands 
will you reap from such a conquest ? May not a ministry 
with the same armies enslave you ? It may be said you will 
cease to pay them ; but remember the taxes from America, 
the wealth, and, we may add, the men, and particularly the 
Roman Catholics, of this vast continent, will then be in 
the power of your enemies ; nor will you have reason 
to expect, that, after making slaves of us, many among us 
should refuse to assist in reducing you to the same abject 
state. 

Do not treat this as chimerical. Know that in less than 
half a century, the quit rents reserved to the crown from 
the numberless grants of this vast continent, will pour large 
streams of wealth into the royal coffers ; and if to this be 
added the power of taxing America at pleasure, the crown 
will be rendered independent of you for supplies, and will 
possess more treasure than may be necessary to purchase 



352 APPENDIX A. 



the remains of liberty in your island. In a word, take care 
that you do not fall into the pit that is preparing for us. 

We believe there is yet much virtue, much justice, and 
much public spirit, in the English nation. To that justice 
we now appeal. You have been told that we are seditious, 
impatient of government, and desirous of independence. 
Be assured that these are not facts, but calumnies. Permit 
us to be as free as yourselves, and we shall ever esteem a 
union with you to be our greatest glory, and our greatest 
happiness ; we shall ever be ready to contribute all in our 
power to the welfare of the empire ; we shall consider your 
enemies as our enemies, and your interest as our own. 

But if you are determined that your ministers shall 
wantonly sport with the rights of mankind ; if neither the 
voice of justice, the dictates of law, the principles of the 
Constitution, or the suggestions of humanity, can restrain 
your hands from shedding human blood in such an impious 
cause, — we must then tell you that we will never submit to 
be hewers of wood, or drawers of water, for any ministry or 
nation in the world. 

Place us in the same situation as we were at the close 
of the last war, and our former harmony will be restored. 
But lest the same supineness, and the same inattention to 
our common interest, which you have for several years 
shown, should continue, we think it prudent to anticipate 
the consequences. 

By the destruction of the trade of Boston, the ministry 
have endeavored to induce submission to their measures. 
The like fate may befall us all. We will endeavor, there- 
fore, to live without trade, and recur for subsistence to 



APPENDIX A. 353 



the fertility and bounty of our native soil, which affords us 
all the necessaries and some of the conveniences of Hfe. 
We have suspended our importation from Great Britain and 
Ireland, and in less than a year's time, unless our grievances 
should be redressed, shall discontinue our exports to those 
kingdoms and the West Indies. 

It is with the utmost regret, however, that we find ourselves 
compelled, by the overruling principles of self-preservation, 
to adopt measures detrimental in their consequences to 
numbers of our fellow- subjects in Great Britain and Ireland ; 
but we hope that the magnanimity and justice of the 
British nation will furnish a parliament of such wisdom, 
independence, and public spirit, as may save the violated 
rights of the whole empire from the devices of wicked 
ministers and evil counsellors, whether in or out of office, 
and thereby restore that harmony, friendship, and fraternal 
affection between all the inhabitants of his majesty's king- 
doms and territories, so ardently wished for by every true 
and honest American. 



APPENDIX B. 



THE CONSTITUTIONAL RIGHT TO SUE A STATE OF 
THE UNION. 

CHISHOLM, EXECUTOR, verstis GEORGIA. 
[fay^s 0/lnion as reported by Dallas."] 

THE question we are now to decide has been accurately 
stated ; viz., Is a State suable by individual citizens of 
another State ? 

It is said that Georgia refuses to appear and answer to 
the plaintiff in this action, because she is a sovereign State, 
and, therefore, not liable to such actions. In order to as- 
certain the merits of this objection, let us inquire, ist. In 
what sense Georgia is a sovereign State ; 2d, Whether sua- 
bility is incompatible with such sovereignty ; 3d, Whether 
the Constitution — to which Georgia is a party — authorizes 
such an action against her. Suability and suable are words 
not in common use, but they concisely, correctly convey the 
idea annexed to them. 

First : In determining the sense in which Georgia is a 
sovereign State, it may be useful to turn our attention to the 
political situation we were in prior to the Revolution, and to 
the political rights which emerged from the Revolution. 
All the country now possessed by the United States, was 
354 



APPENDIX B. 355 



then a part of the dominions appertaining to the crown of 
Great Britain. Every acre of land in this country was then 
held, mediately or immediately, by grants from that crown. 
All the people of this country were then subjects of the king 
of Great Britain, and owed allegiance to him ; and all the 
civil authority then existing, or exercised here, flowed from 
the head of the British Empire. They were, in strict sense, 
/^//(?a'-subjects, and, in a variety of respects, one people. 
When the Revolution commenced, the patriots did not assert 
that only the same affinity and social connection subsisted 
between the people of the colonies, which subsisted between 
the people of Gaul, Britain, and Spain, while Roman prov- 
inces ; viz., only that affinity and social connection which 
result from the mere circumstance of being governed by the 
same prince. Different ideas prevailed, and gave occasion 
to the Congress of 1774 and 1775. 

The Revolution, or rather the Declaration of Independ- 
ence, found the people already united for general purposes, 
and, at the same time, providing for their more domestic 
concerns by State conventions, and other temporary arrange- 
ments. From the crown of Great Britain the sovereignty 
of their country passed to the people of it ; and it was not 
then an uncommon opinion that the unappropriated lands, 
which belonged to that crown, passed, not to the people of 
the colony or State within whose limits they were situated, 
but to the whole people. On whatever principles this opin- 
ion rested, it did not give way to the other ; and thirteen 
sovereignties were considered as emerged from the princi- 
ples of the Revolution combined with local convenience 
and considerations. The people, nevertheless, continued to 



356 APPENDIX B. 



consider themselves, in a national point of view, as one 
people, and they continued without interruption to manage 
their national concerns accordingly. Afterwards, in the 
hurry of war, and in the warmth of mutual confidence, they 
made a Confederation of the States the basis of a General 
Government. Experience disappointed the expectations 
they had formed from it ; and then the people, in their col- 
lective and national capacity, established the present Con- 
stitution. It is remarkable, that, in establishing it, the people 
exercised their own rights and their own proper sovereignty ; 
and, conscious of the plenitude of it, they declared, with 
becoming dignity, " We, the people of the United States, do 
ordain and establish this Constitution." Here we see the 
people acting as sovereigns of the whole country, and, in the 
language of sovereignty, establishing a Constitution by which 
it was their will that the State Governments should be bound, 
and to which the State Constitutions should be made to con- 
form. Every State Constitution is a compact made by 
and between the citizens of a State, to govern themselves in 
a certain manner ; and the Constitution of the United States 
is likewise a compact made by the people of the United 
States, to govern themselves as to general objects in a 
certain manner. By this great compact, however, many 
prerogatives were transferred to the National Government, — 
such as those of making war and peace, contracting alliances, 
coining money, etc. 

If, then, it be true, that the sovereignty of the nation is the 
people of the nation, and the residuary sovereignty of each 
State in the people of each State, it may be useful to com- 
pare these sovereignties with those of Europe, that we may 



APPENDIX B. 357 



thence be enabled to judge whether all the prerogatives, 
which are allowed to the latter, are so essential to the former. 
There is reason to suspect that some of the difficulties, 
which embarrass the present question, arise from inattention 
to differences which subsist between them. 

It will be sufficient to observe briefly that the sovereign 
ties in Europe, and particularly in England, exist on feudal 
principles. That system considers the prince as the sover- 
eign, and the people as his subjects. It regards his person 
as the object of allegiance, and excludes the idea of his be- 
ing on an equal footing with a subject, — either in a court of 
justice or elsewhere. That system contemplates him as 
being the fountain of honor and authority, and, from his 
grace and grant, derives all franchises, immunities, and priv- 
ileges. It is easy to perceive that such a sovereign could 
not be amenable to a court of justice, or subjected to 
judicial control or actual constraint. It was of necessity, 
therefore, that suability became incompatible with such 
sovereignty. Besides, the prince having all the executive 
powers, the judgment of the courts would, in fact, be only 
monitory, not mandatory, to him ; and a capacity to be ad- 
vised is a distinct thing from a capacity to be sued. The 
same feudal ideas run through all their jurisprudence, and 
constantly remind us of the distinction between the prince 
and the subject. No such ideas obtain here. At the Rev- 
olution the sovereignty devolved on the people, and they 
are truly the sovereigns of the country ; but they are sover- 
eigns without subjects (unless the African slaves among us 
may be so called), and have none to govern but themselves. 
The citizens of America are equal as fellow-citizens, and as 
joint tenants in the sovereignty. 



358 APPENDIX B. 



From the differences existing between feudal sovereign- 
ties, and governments founded on compacts, it necessarily 
follows that their respective prerogatives must differ. Sov- 
ereignty is the right to govern a nation or State. Sovereign 
is the person or persons in whom that resides. In Europe 
the sovereignty is generally ascribed to the prince. Here 
it rests with the people. There the sovereign actually 
administers the government, — here never in a single instance. 
Our governors are the agents of the people, and at most 
stand in the same relation to their sovereign in which 
regents in Europe stand to their sovereigns. Their princes 
have personal powers, dignities, and pre-eminences : our 
rulers have none but official, nor do they partake in the 
sovereignty otherwise or in any other capacity than as 
private citizens. 

Secondly : The second object of inquiry now presents 
itself; viz., whether suability is compatible with Statd 
sovereignty. 

Suability by whom ? Not a subject, for in this country 
there are none. Not an inferior ; for all its citizens being, as 
to civil rights, perfectly equal, there is not in that respect 
one citizen inferior to another. It is agreed that one free 
citizen may sue another, the obvious dictates of justice 
and the purposes of society demanding it. It is agreed 
that one free citizen may sue any number on whom pro- 
cess can be conveniently executed : nay, in certain cases, 
one citizen may sue forty thousand ; for, when a corporation 
is sued, all the members of it are actually sued, though not 
personally sued. In this city, there are forty odd thousand 
free citizens, all of whom may be collectively sued by any 



APPENDIX B. 359 



individual citizen. In the State of Delaware, there are fifty 
odd thousand free citizens ; and what reason can be assigned 
why a free citizen who has demands against them should 
not prosecute them ? Can the difference between forty odd 
thousand and fifty odd thousand make any distinction as to 
right? Is it not as easy and as convenient to the public 
and parties to serve a summons on the governor and attorney- 
general of Delaware, as on the mayor or other officers of 
the corporation of Philadelphia? Will it be said that the 
fifty odd thousand citizens in Delaware, being associated 
under a State Government, stand in a rank so superior to 
the forty odd thousand of Philadelphia associated under 
their charter, that although it may become the latter to 
meet an individual on an equal footing in a court of justice, 
yet that such a procedure would not comport with the dignity 
of the former ? In this land of equal liberty, shall forty odd 
thousand in one place be compellable to do justice, and 
yet fifty odd thousand in another place be privileged to do 
justice otily as they may think proper? Such objections 
would not correspond with the equal rights we claim ; with 
the equahty we profess to admire and maintain, and with 
that popular sovereignty in which every citizen partakes. 
Grant that the governor of Delaware holds an office of 
superior rank to the mayor of Philadelphia, they are both, 
nevertheless, the officers of the people ; and however more 
exalted the one may be than the other, yet, in the opinion 
of those who dislike aristocracy, that circumstance cannot 
be a good reason for impeding the course of justice. 

If there be any such incompatibility as is pretended, 
whence does it arise ? In what does it consist ? There is 



36o APPENDIX B. 



at least one strong, undeniable fact against this incompati- 
bility; and that is, any one State in the Union may sue 
another State in this court ; that is, all the people of one 
State may sue all the people of another State. It is plain, 
then, that a State may be sued ; and hence it plainly follows 
that suability and State sovereignty are not incompatible. 
As one State may sue another State in this court, it is plain 
that no degradation to a State is thought to accompany her 
appearance in this court that the objection points. To 
what does it point? It points to an appearance at the suit 
of one or more citizens. But why it should be more 
incompatible that all the people of a State should be sued 
by one citizen than by one hundred thousand, I cannot 
perceive ; the process in both cases being alike, and the 
consequences of a judgment alike. Nor can I observe any 
greater inconvenience in the one case than in the other, 
except what may arise from the feelings of those who may 
regard a lesser number in an inferior light. But, if any 
reliance be made on this inferiority as an objection, at 
least one-half of its force is done away by this fact, — that 
it is conceded that a State may appear in this court as a 
plaintiff against a single citizen as defendant ; and the truth 
is, that the State of Georgia is at this moment prosecut- 
ing an action in this court against two citizens of South 
Carolina. 

The only remnant of objection, therefore, that remains, is, 
that the State is not bound to appear and answer as a 
defendant at the suit of an individual; but why it is 
unreasonable that she should be so bound, is hard to con- 
jecture. That rule is said to be a bad one which does not 



APPENDIX B. 361 



work both ways ; and the citizens of Georgia are content with 
a right of suing citizens of other States, but are not content 
that citizens of other States should have a right to sue them. 

Let us now proceed to inquire whether Georgia has not, 
by being a party to the national compact, consented to be 
suable by individual citizens of another State. This in- 
quiry naturally leads our attention, ist, to the design of the 
Constitution ; 2d, to the letter and express declaration in it. 

Prior to the date of the Constitution, the people had not 
any national tribunal to which they could resort for justice. 
The distribution of justice was then confined to State judica- 
tories, in whose institution and organization the people of 
the other States had no participation, and over whom they 
had not the least control. There was then no general court 
of appellate jurisdiction by whom the errors of State courts, 
affecting either the nation at large or the citizens of 
any other State, could be revised and corrected. Each 
State was obliged to acquiesce in the measure of justice 
which another State might yield to her, or to her citizens, 
and that even in cases where State considerations were not 
always favorable to the most exact measure. There was 
danger that from this source animosities would in time 
result ; and as the transition from animosities to hostilities 
was frequent in the history of independent States, a common 
tribunal for the termination of controversies became desir- 
able from motives both of justice and of policy. 

Prior also to that period, the United States had, by 
taking a place among the nations of the earth, become 
amenable to the law of nations ; and it was their interest, as 
well as their duty, to provide that those laws should be 



362 APPENDIX B. 



respected and obeyed. In their natural character and 
capacity, the United States were responsible to foreign 
nations for the conduct of each State relative to the law 
of nations and the performance of treaties; and then the 
inexpediency of referring all such questions to State courts, 
and particularly to the courts of delinquent States, became 
apparent. While ail the States were bound to protect each, 
and the citizens of each, it was highly proper and reason- 
able that they should be in a capacity, not only to cause 
justice to be done fo each, and the citizens of each, but also 
to cause justice to be done l^y each, and the citizens of each, 
and that not by violence and force, but in a stable, sedate, 
and regular course of judicial procedure. These were among 
the evils against which it was proper for the nation — that is, 
the people of all the United States — to provide by a national 
judiciary, to be instituted by the whole nation, and to be 
.responsible to the whole nation. 

Let us now turn to the Constitution. The people therein 
declare that their design in establishing it comprehended 
six objects, — to form a more perfect union ; to establish 
justice ; to insure domestic tranquillity ; to provide for 
the common defence ; to promote the general welfare, and 
to secure the blessings of liberty to themselves and their 
posterity. It would be pleasing and useful to consider and 
trace the relations which each of these objects bears to the 
others, and to show that they collectively comprise every 
thing requisite, with the blessing of divine Providence, to 
render a people prosperous and happy : on the present 
occasion such disquisitions would be unreasonable because 
foreign to the subject immediately under consideration. 



APPENDIX B. 363 



It may be asked, What is the precise sense and latitude in 
which the words, " to estabUsh justice," as here used, are 
to be understood ? The answer to this question will result 
from the provisions made in the Constitution on this head. 
They are specified in the second section of the third article, 
where it is ordained that the judicial power of the United 
States shall extend to ten descriptions of cases: i. To all 
cases arising under this Constitution ; because the meaning, 
construction, and operation of a compact ought always to 
be ascertained by all the parties, or by authority derived 
from them. 2. To all cases arising under the laws of the 
United States ; because, as such laws constitutionally made 
are obligatory on each State, the measure of obligation and 
obedience ought not to be decided and fixed by the party 
from whom they are due, but by a tribunal deriving authority 
from both the parties. 3. To all cases arising under treaties 
made by their authority ; because as treaties are compacts 
made by, and obligatory on, the whole nation, their operation 
ought not to be affected or regulated by the local laws or 
courts of a part of the nation. 4. To all cases affect- 
ing ambassadors or other pubhc ministers and counsels ; 
because as these are officers of foreign nations, whom 
this nation is bound to protect and treat according to 
the law of nations, cases affecting them ought only to be 
cognizable by national authority. 5. To all cases of admi- 
ralty and maritime jurisdiction ; because as the seas are the 
joint property of nations, whose rights and privileges relative 
thereto are regulated by the law of nations and treaties, such 
cases necessarily belong to national jurisdiction. 6. To 
controversies to which the United States shall be a party ; 



364 APPEXDIX E. 



because in cases in which the whole people are interested, 
it would not be equal or wise to let any one State decide 
and measure out the justice due to others. 7. To con- 
troversies between two or more States ; because domestic 
tranquillity requires that the contentions of States should be 
peaceably terminated by a common judicatory, and because, 
in a free country, justice ought not to depend on the will 
of either of the litigants. 8. To controversies between a 
State and citizens of another State ; because, in case a State 
(that is, all citizens of it) has demands against some citizens 
of another State, it is better that she should prosecute their 
demands in a national court, than in a court of the State to 
which those citizens belong, the danger of irritation and 
crimination arising from apprehensions and suspicions of 
partiality being thereby obviated ; because, in cases where 
some citizens of one State have demands against all the 
•citizens of another State, the cause of liberty and the rights 
of men forbid that the latter should be the sole judges 
■of the justice due to the former, and true republican 
government requires that free and equal citizens should have 
free, fair, and equal justice, 9. To controversies between 
citizens of the same State claiming lands under grants of 
different States ; because, as the rights of the two States to 
grant the land are drawn into question, neither of the two 
States ought to decide the controversy. 10. To contro- 
versies between a State or the citizens thereof and foreign 
States, citizens or subjects ; because as every nation is 
responsible for the conduct of its citizens towards other 
nations, questions touching the justice due to foreign 
nations or people ought to be ascertained by, and depend 



APPENDIX B. 365 



on national authority. Even this cursory view of the judi- 
cial powers of the United States leaves the mind strongly 
impressed with the importance of them to the preservation 
of the tranquillity, the equal sovereignty, and the equal 
rights, of the people. 

The question now before us renders it necessary to pay 
particular attention to that part of the second section which 
extends the judicial power to *' controversies between a 
State and citizens of another State." It is contended that 
this ought to be construed to reach none of these con- 
troversies excepting those in which a State may be plaintiff. 
The ordinary rules for construction will easily decide whether 
those words are to be understood in that limited sense. 

This extension of power is remedial because it is to settle 
controversies. It is therefore to be construed liberally. It 
is politic, wise, and good that not only the controversies in 
which a State is plaintiff, but also those in which a State 
is defendant, should be settled. Both cases, therefore, are 
within the reason of the remedy, and ought to be so 
adjudged unless the obvious, plain, and literal sense of the 
words forbid it. If we attend to the words, we find them to 
be express, positive, free from ambiguity, and without room 
for such implied expressions. " The judicial power of the 
United States shall extend to controversies between a State 
and citizens of another State." If the Constitution really 
meant to extend these powers only to those controversies in 
which a State might be plaintiff, to the exclusion of those in 
which citizens had demands against a State, it is inconceiv- 
able that it should have attempted to convey that meaning 
in words not only so incompetent but also repugnant to it. 



366 APPENDIX B. 



If it meant to exclude a certain class of these controversies, 
why were they not expressly excepted? On the contrary, 
not even an intimation of such intention appears in any part 
of the Constitution. It cannot be pretended, that, where 
citizens urge and insist upon demands against a State which 
the State refuses to admit and comply with, there is no con- 
troversy between them. If it is a controversy between 
them, then it clearly falls, not only within the spirit, but the 
very words, of the Constitution. What is it to the cause of 
justice, and how can it affect the definition of the word con- 
troversy, whether the demands which cause the dispute are 
made by a State against citizens of another State, or by the 
latter agauist the former? When power is thus extended to 
a controversy, it necessarily, as to all judicial purposes, is 
also extended to those between whom it subsists. 

The exception contended for would contradict, and do 
violence to, the great and leading principles of a free and 
equal national government, one of the great objects of 
which is to insure justice to all, — to the few against the 
many, as well as the many against the few. It would be 
strange, indeed, that the joint and equal sovereigns of this 
country should, in the very Constitution by which they 
professed to establish justice, so far deviate from the plain 
path of equality and impartiality as to give to the collective 
citizens of one State a right of suing individual citizens of 
another State, and yet deny to those citizens a right of suing 
them. We find the same general and comprehensive manner 
of expressing the same ideas in a subsequent clause in which 
the Constitution ordains, that in all cases affecting ambassa- 
dors, other public ministers, and consuls, and those in which 



APPENDIX B. 367 



a State shall be a party, the Supreme Court shall have origi- 
nal jurisdiction. Did it here mean party-plaintiff? If that 
only was meant, it would have been easy to have found 
words to express it. Words are to be understood in their 
ordinary and common acceptation ; and the word party 
being in common usage applicable both to plaintiff and 
defendant, we cannot limit it to one of them in the present 
case. We find the Legislature of the United States express- 
ing themselves in the like general and comprehensive man- 
ner. They speak, in the thirteenth section of the Judicial 
Act, of controversies where a State is z. party ; and as they do 
not impliedly or expressly apply that term to either of the 
litigants in particular, we are to understand them as speaking 
of both. In the same section they distinguished the cases 
where ambassadors are plaintiffs from those in which they 
are defendants, and make provision respecting those cases ; 
and it is not unnatural to suppose that they would in like 
manner have distinguished between cases where a State was 
plaintiff, and where it was a defendant, if they had intended 
to make any difference between them, or if they had appre- 
hended that the Constitution had made such a difference. 

I perceive, and therefore candor urges me to mention, a 
circumstance which seems to favor the opposite side of the 
question. It is this : The same section of the Constitution 
which extends the judicial power to controversies between a 
State and the citizens of another State, does also extend that 
power to controversies to which the United States are a 
party. Now it may be said if the word party comprehends 
both plaintiff and defendant, it follows that the United 
States may be sued by any citizen between whom and them 



368 APPENDIX B. 



there may be a controversy. This appears to me to be fair 
reasoning \ but the same principles of candor which urge me 
to mention this objection, also urge me to suggest an impor- 
tant difference between the two cases. It is this : In all 
cases of action against States or individual citizens, the 
national courts are supported, in all their legal and constitu- 
tional proceedings and judgments, by the executive power 
of the United States ; but in cases of action against them, 
there is no power which the courts can call to their aid. 
From this distinction, important conclusions are deducible, 
and they place the case of a State and the case of the 
United States in very different points of view. 

I wish the state of society was so far improved, and the 
science of government advanced to such a degree of per- 
fection, as that the whole nation could, in the peaceable 
course of law, be compelled to do justice, and be sued 
by individual citizens. Whether that is, or is not, now the 
case, ought not to be thus collaterally and incidentally 
decided. I leave it a question. 

As this opinion, though deliberately formed, has been 
hastily reduced to writing between the intervals of the daily 
adjournments, and while my mind was occupied and 
wearied by the business of the day, I fear it is less concise 
and connected than it might otherwise have been. I have 
made no references to cases, because I know of none that 
are not distinguishable from this, nor does it appear to me 
necessary to show that the sentiments of the best writers on 
government and the rights of men harmonize with the prin- 
ciples which direct my judgment on the present question. 
The Acts of the former Congresses and the Acts of many 



APPENDIX B. 369 



of the State Conventions are replete with similar ideas, and 
to the honor of the United States it may be observed that 
in no other country are subjects of the kind better if so well 
understood. The attention and attachment of the Constitu- 
tion to the equal rights of the people are discernible in 
almost every sentence of it, and it is to be regretted that 
the provision in it which we have been considering has not 
in every instance received the approbation and acquiescence 
which it merits. Georgia has in strong language advocated 
the cause of republican equality, and there is reason to 
hope that the people of that State will yet perceive that it 
would not have been consistent with equality to have 
exempted the body of her citizens from that suability which 
they are at this moment exercising against citizens of another 
State. 

For my own part, I am convinced that the sense in which 
I understand and have explained the words, " controversies 
between States and citizens of another State," is the true 
sense. The extension of the judiciary power of the United 
States to such controversies appears to me to be wise 
because it is honest and because it is useful. It is honest 
because it provides for doing justice without respect for per- 
sons, and, by securing individual citizens as well as States in 
their respective rights, performs the promise which every free 
government makes to every free citizen, of equal justice and 
protection. It is useful because it is honest ; because it 
leaves not even the most obscure and friendless citizen 
without means of obtaining justice from a neighboring 
State ; because it obviates occasions of quarrels between 
States on account of the claims of their respective citizens ; 






370 APPENDIX B. 



because it recognizes, and strongly rests on, this great moral 
truth, that justice is the same whether due from one man 
or a million, or from a million to one man ; because it 
teaches and greatly appreciates the value of our free repub- 
lican national government which places all our citizens on 
an equal footing, and enables each and every of them to 
obtain justice without any danger of being overborne by the 
weight and number of their opponents ; and because it 
brings into action and enforces this great and glorious 
principle, that the people are the sovereigns of this country, 
and consequently that fellow-citizens and joint sovereigns 
cannot be degraded, by appearing with each other in their 
own courts to have their controversies determined. The 
people have reason to prize and rejoice in such valuable 
privileges, and they ought not to forget that nothing but the 
free course of constitutional law and government can insure 
the continuance and enjoyment of them. 

For the reasons before given, I am clearly of opinion, 
that a State is suable by citizens of another State : but lest 
I should be understood in a latitude beyond my meaning, I 
think it necessary to subjoin this caution; viz., that such 
suability may nevertheless not extend to all the demands 
and to every kind of action. For instance, I am far from 
being prepared to say that an individual may sue a State 
on bills of credit issued before the Constitution was estab- 
lished, and which were issued and received on the faith of 
the State, and at a time when no ideas or expectations of 
judicial interposition were entertained or contemplated. 



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